Is There a Constitutionally Protected Right to Use Reproductive Technologies?
posted by Glenn Cohen
A few months back Jessie Hill had a blog post entitled “My so-called right to procreate” asking about the scope of procreative liberty protected by the Constitution. I wrote about this issue in passing in a paper devoted to the opposite question, whether the constitution protect a right NOT to procreate (or what I prefer to think of as rights not to procreate, separable sticks in a bundle encompassing the right not to be a legal, gestational, or genetic parent – indeed as I pointed out there, I think the right to procreate should be similarly unbundled). In a new paper entitled Well, What About the Children?: Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction, as part of a larger project on the justifications for the regulation of reproduction I briefly address a slightly narrower issue than the one in Jessie’s post, whether there is a negative liberty fundamental right to non-interference with reproductive technology use. I thought I would set out and expand on that discussion here and see what other readers thought.
My own view is that the constitutional status of state interventions preventing access to reproductive technologies (either directly, e.g., prohibitions on access to reproductive technology for women over age 50 or through regulation, or indirectly, e.g., parental fitness screening for surrogacy users) is deeply under-determined by the existing doctrine. The only U.S. Supreme Court decision to consider whether there is a fundamental right to become a genetic parent, Skinner v. Oklahoma, 316 U.S. 535, 536-39 (1942) (finding a fundamental right that was violated by physical sterilization of individuals convicted three or more times of crimes of moral turpitude but not embezzlement) is subject to a myriad of possible interpretations especially as applied to reproductive technologies.
Here are a few:
Skinner protects as a fundamental right any use of reproductive technologies that simulates that which would be achievable by coital reproduction in the fertile individual (not, therefore, something like genetic engineering). John Robertson is the person I most closely associate with this view (although his view has considerably more nuance that I can get across here).
On the other extreme, one might argue that because Skinner itself was premised on an Equal Protection claim not a substantive Due Process one and thus there is no substantive Due Process right to Procreate at all. Cf. VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR-TRIUMPH OF AMERICAN EUGENICS 165 (2008) (concluding that “both liberals and conservatives have made a mistake” in their reading of Skinner because the case was “neither argued nor decided as a case about rights in the sense that we use the term ‘fundamental right’ today).” That said, over the years the Court has lumped Skinner in with its substantive Due Process jurisprudence so often that the time may have passed for hewing to this distinction.
In between there are several other positions:
Focusing on Justice Douglas’ justification in Skinner (“There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”) and especially the words “irreparable injury” and “forever deprived,” Skinner stands for a limited Due Process right against physical sterilization and not a more general right to procreate. Such an interpretation is buttressed by the heightened protection against state interference with bodily integrity, as evident in informed consent, abortion rights, and elsewhere.
In Skinner the state was taking away something and individual already had – reproductive capacity – rather than preventing assistance to reproduce, and it is the former element that made the right at issue there a fundamental right. On this view only interference with coital reproduction and not the reproductive technology restrictions impinge upon a fundamental right
Skinner protects as fundamental rights only non-commercial forms of reproduction but not forms that require payment, in analogy to the way that Lawrence v. Texas seems to subject the criminalization of sexually intimate activities to heightened constitutional scrutiny but that does not mean the state is subject to the same scrutiny if it criminalizes paying for those activities, or at least so suggests the Lawrence majority. 539 U.S. 558, 577-79 (2003).; but see id. 592, 603 (Scalia, J., Dissenting) (attacking this distinction). Here, in analogy to my prior commodification discussion, one might press on whether commercialization corrupts (or more neutrally transforms) reproduction as much as it does sexuality in the prostitution case.
Still other readings are possible: See, e.g., Carl Wellman, MEDICAL LAW AND MORAL RIGHTS 145-46 (2005) (reading Skinner as limited to marriage); Carter J. Dillard, Rethinking the Procreative Right, 10 YALE HUM. RTS. DEV. L.J. 1, 44 (2007) (reading Skinner as protecting only a right to “self-replace” and thus a fundamental right to only one or two children per couple); Michelle Meyer, The Mythical Right to Procreate (manuscript) (collecting readings).
The uncertainty about how to read Skinner is compounded by other unresolved substantive Due Process debates: the debate between those adopting an “intimacy” versus “Due Process Traditionalist” approach to Substantive Due Process: whether new fundamental rights claims that build off existing decisions (Skinner in this case) will be ‘grandfathered’ in or instead revisited under the more Traditionalist approach; the debate over the level of generality with which we characterize the right at issue – it is easier to find a fundamental “right to procreate” writ large grounded in Skinner and historical analogues than a “right to use an anonymous sperm donor.”
Further, complicating the question is that in some cases (such as the denial of services based on age or sexuality) while discrimination against these categories of persons we are told ordinarily only merits rational basis review, it is also possible that when combined with the increased substantive Due Process protection of procreative activities, heightened scrutiny (of the intermediate or strict variety) may be warranted as a matter of Equal Protection (one reading of what happened in Skinner itself). See Radhika Rao, Equal Liberty: Assisted Reproductive Technology And Reproductive Equality, 76 GEO. WASH. L. REV. 1457 (2008).
Thus, I think a court faced with the question of what to do with these kinds of cases has a lot of constitutional room to maneuver.
Am I making this more complicated than it should be?