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Procreative Liberty and the State's Burden of Proof in Regulating Noncoital Reproduction

Published online by Cambridge University Press:  28 April 2021

John A. Robertson
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Extract

The growing popularity of noncoital solutions to infertility has raised questions about the need for public policies to regulate these techniques. While surrogacy has dominated public attention, controversy has also surrounded in vitro fertilization (IVF), embryo freezing, and gamete donation.

The policy concerns arise from the potential impact that the means of noncoital reproduction—embryo manipulation or use of gamete donors and surrogates—could have on offspring, collaborators, the family, and gender-based reproductive roles. For example, IVF techniques involving the creation and manipulation of human embryos may harm embryos and the offspring to which they lead. Noncoital techniques involving gamete donors and surrogates raise issues of offspring welfare, the interests of collaborators, exploitation of women, and effects on the family and society generally.

A basic question for public policy is the scope of private discretion over noncoital means of forming families. Should the state prohibit or regulate use of these techniques, or should their use be left to the free choice of infertile couples, collaborators, and physicians? Since state limits on reproductive choice are necessarily problematic, the issue is whether noncoital reproduction poses risks so significantly different from coital reproduction that regulation is justified.

Type
Civil Liberties
Information
Law, Medicine and Healthcare , Volume 16 , Issue 1-2 , Spring 1988 , pp. 18 - 26
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

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References

Bellotti v. Baird, 443 U.S. 622 (1979); Carey v. Population Servs. Int'l, 431 U.S. 678 (1977); Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar
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The need for the assistance of physicians, donors, and surrogates does not make noncoital reproduction a less protected aspect of marital privacy. Abortion is protected as part of procreative privacy even though it occurs under the gaze of and with the assistance of physicians and nurses. The personal importance of a decision or activity, rather than its secrecy from the gaze of others, determines its status as part of protected privacy (or liberty, to be more precise). In fact, the use of donors and surrogates will often occur “privately,” with no one other than the couple and physician aware of the anonymous provision of missing reproductive factors.Google Scholar
For example, printing braille may necessitate the use of chemical and metallurgical processes that threaten environmental or physical harm to persons, just as use of donors and surrogates may be thought to threaten the welfare of offspring or the family. In either case, however, state action should be subject to the strict scrutiny that would be applied to restrictions on buying books or on coital reproduction. Technological aids to overcome physical disability may implicate different state interests, but they do not diminish the importance of the end being sought.Google Scholar
Robertson, , “Procreative Liberty,” supra note 3, at 427–33. See also Robertson, John, “Embryos, Families and Procreative Liberty: The Legal Structure of the New Reproduction,” Southern California Law Review, 59 (1986): 939. 957–62.Google Scholar
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For example, the symbolic gain of showing respect for all human life by requiring donation of unwanted embryos may be outweighed by the psychosocial harm to gamete sources who wish no genetic offspring. Similarly, the symbolic gains from prohibiting the creation of embryos for research purposes may be outweighed by the loss of knowledge that results from this limitation on research. Id.: 980–85.Google Scholar
Noncoital techniques involving IVF may pose the threat of physical harm as well, but the evidence to date does not suggest a higher rate of physical defects in offspring from external conception. Id.: 991–92.Google Scholar
It should be noted that such offspring will have a biologic tie with at least one of the rearing parents and thus may be in a more favorable rearing situation than are adopted children.Google Scholar
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Harm to offspring is to be distinguished from harm to others who must bear the costs of rearing offspring born as a result of these techniques. But this is a different basis for regulation than preventing harm to offspring, and should be evaluated like any other restrictions on reproduction enacted in order to prevent the imposition of rearing burdens on others. Id.: 989–90.Google Scholar
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The result of such laws may be to discourage some collaborative births from occurring. But this result would not violate the rights of the children not then born, for no person exists with rights to be violated. The unborn have no right to be born. See id: 1018.Google Scholar
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IVF programs have been notorious for giving patients inaccurate and overly optimistic estimates of likely success from use of the technique, when many IVF programs have had no or few live births. Soules, , “The in Vitro Fertilization Pregnancy Rate: Let's Be Honest with One Another,” Fertility & Sterility, 43 (1985): 511–12.Google Scholar
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A New York legislative committee proposed such a bill, which has received much favorable attention. New York State Senate Judiciary Committee, Surrogate Parenting in New York: A Proposal for Legislative Reform (Dec. 1986).Google Scholar
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Other motivations include a wish for attention, the desire for pregnancy and reproduction without the burdens of rearing, and the opportunity to relive and master a previous incident of relinquishing a child. Parker, , “Motivation of Surrogate Mothers: Initial Findings,” American Journal of Psychiatry, 140 (1983): 117.Google Scholar
For a discussion of the obligation to repay gifts, see Mauss, Marcel, The Gift (1967); see also Murray, , “Gifts of the Body and the Needs of Strangers,” Hastings Center Report, 17 (1987): 30–35.Google Scholar
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An important difference between surrogacy and adoption is that the father has a genetic connection with the child—he is the father—that is missing in adoption.Google Scholar
537 A.2d 1227, 1253 (N.J. 1988).Google Scholar
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The United States Supreme Court has been willing to terminate a father's rearing rights when he played no rearing role for some period after birth. See Lehr v. Robertson, 463 U.S. 248 (1983); Parham v. Hughes, 441 U.S. 347 (1979).Google Scholar
The validity of mandatory embryo donation laws in lieu of discard also remains to be determined. See Robertson, , “Embryos,” supra note 6, at 979–81.Google Scholar
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Indeed, the state's concerns in Baby M, according to the court's interpretation of the adoption statutes, were not protection of the child's welfare but protection of the mother against exploitation and her later change of mind. These are not concerns about innocent third parties, but about the interests of adults who knowingly participate in the surrogate arrangement and then change their mind. It is not clear that their interests deserve the same protection as that of “innocent third parries.”Google Scholar