The Parameters of Procreation

• Pages: 145-166
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

145

Chapter 7

THE PARAMETERS OF PROCREATION

I. Constitutional Underpinnings

The parent-child relationship, once established solely through

conception by sexual intercourse or by statutory adoption, may now

occur through a much broader range of options. Assisted reproductive

technology (ART) has advanced significan tly. Today, procreation

options are available to married and single persons, either during the

lifetime of a gamete d onor, or even posthumously after the donor’s

death. In tandem, a number of uniform acts, state statutes, and

judicial opinions addressing assisted conception and surrogacy

contracts establish ART as consistent with public policy.

Nonetheless, there remain unanswered questions, such as maternity

and paternity rights at death or di ssolution of relationships, or how

to dispose of sperm, eggs, or human embryos stored at fertility clinics,

and the many ethical issues raised by these technological procedures.

Books and article s have bee n written about ART, but here they are

discussed briefly in the context of procreation, the establishment of a

parent-child relationship.

Modern technology has not progressed alone. Public p erception

and the laws have evolved too. Most commenta tors would start any

analysis with the 1965 Griswold decision establishing the right to

privacy as within the parameters of the Constitution. The facts

involved a longstanding state statute that made it a criminal offense

for any person to use any drug, medicinal article, or instrument, to

prevent conception.

1

The statute also contained an abettor provision,

making it a criminal offense to abet or counsel another to commit an

offense under the statute. The abettors in Griswold were the

Executive Director of the Planned Parenthood League of Connecticut

and also a physician who served as the organization’s medical

director. These named persons had given technical info rmation and

advice to married persons concerning the means for p reventing

conception.

Although the decision included both concurring and dissenting

opinions, the majority’s holding, written by Justice William O.

Douglas, relied on what he termed “a m arital right of privacy”

emanating from various constitutional guarantees under the first ten

amendments to the United States Constitution. Specifically, the

guarantee of privacy was contained in the First, Third, Fourth, Fifth,

1

Griswold v. Connecticut, 381 U.S. 479 (1965).

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THE PARAMETERS OF PROCREATION

Ch. 7

and Ninth Amendments. The opinion included a statement that

would resonate through many subsequent decisions:

Would we allow the police to search the sacred precincts of

marital bedrooms for telltale signs of the use of

contraceptives? The very idea is repulsive to the not ions of

privacy surrounding the marriage relationship.

2

Griswold ostensibly affected married couples, yet less than a

decade later, Justice William J. Brennan, Jr. expanded the right of

privacy, previously only granted to married couples, to individuals as

well. In the Eisenstadt decision, which held as unconstitutional a

state statute banning the distribution of contraceptive devices to

single individuals, Justice Brennan wrote that:

If under Griswold the distribution of contraceptives to

married persons cannot be prohibited, a ban on distribution

to unmarried persons would be equally impermissible. It is

true that in Griswo ld the right of privacy in question

inhered in the marital rel ationship. Yet the marital couple

is not an independent entity with a mind and heart of its

own, but an association of two individuals each with a

separate intellectual and emotional makeup. If th e right of

privacy means anything, it i s the right of the individual ,

married or single, to be free from unwarranted

governmental intrusion into matters so fundamentally

affecting a person as the decision whethe r to bear or beget

a child.

3

Eisenstadt was followed the next year, in 1973, by a decision

authored by Justice Harry Blackmun, Roe v. Wade, ex tending the

right of privacy to protect a woman’s right to obtain an abortion.

4

The

woman’s right to privacy and abortion remain subject to the state’s

interest in protecting potential life as the pregnancy progressed.

Later decisions bounded the state’s interest in particular

circumstances. For example, in Pla nned Parenthood v. Danforth the

court struck down a state measure requiring wives to notify their

husbands of their decisions to have an abortion.

5

The state’s ability to prote ct viable life received elaboration in

the Supreme Court’s 1992 decision, Planned Parenthood v. Casey .

6

There, Justice S andra Day O’Connor, writing for the majority, held

that states may regulate abortions, so long as state regulations do

2

Id. at 485.

3

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis added).

4

Roe v. Wade, 410 U.S. 113 (1973).

5

Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

6

Planned Parenthood v. Casey, 505 U.S. 833 (1992).