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

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).

316 U.S. 535, 541 (1942).

For quotations from these cases and the applicable citations, see Robertson John , “Procreative Liberty and the Control of Conception, Pregnancy and Childbirth,” Virginia Law Review, 69 (1983): 405, 414, n. 23.

The right involved here may be formulated either as the couple's right to reproduce or as a right to form a family. The latter formulation may be more desirable, since it is the couple's experience of rearing offspring biologically related to one or both of them that seems essential, rather than transmission of genes alone without rearing. However, since reproduction often leads to the rearing experiences at issue, talk of a right to “reproduce” or “procreate” is also accurate.

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.

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.

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.

Robertson , “Embryos,” supra note 6, at 987.

Id.: 974–75.

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.

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.

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.

Robertson , “Embryos,” supra note 6, at 988–89.

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.

Id.: 1015–18, and authorities cited therein.

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.

For a fuller discussion of these policy issues see, gen., id.

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.

Robertson John , “Ethical and Legal Issues in the Cryo-preservation of Human Embryos,” Fertility & Sterility, 47 (1987): 371, 373–74.

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).

Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976) (requirement of written consent for abortions permissible even though no such consent is required for other medical procedures).

Robertson , “Embryos,” supra note 6, at 1039.

For citations to these statutes, see Congress of the United States, Office of Technology Assessment, Infertility Treatment and Prevention (April 1988). The enforceability of agreements to include the donor in rearing have not received legislative support, though some courts have given effect to such arrangements with donor sperm. See Robertson , “Embryos,” supra note 6, at 1005–6.

Robertson John , “Technology and Motherhood: Ethical and Legal Issues in Human Egg Donation,” Case Western Reserve Law Review, forthcoming.

See below for a critique of this decision.

Magisterium of the Catholic Church, Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day, 25 (Feb. 22, 1987). See also “Dissenting Statement of Father Richard McCormick,” Fertility & Sterility, 46 (1986), Supp. App. A, 82S.

Magisterium , supra note 25.

Robertson , “Embryos,” supra note 6, at 965–67.

Robertson , “Technology,” supra note 23, at 25.

Annas George , “Redefining Parenthood and Protecting Embryos: Why We Need New Laws,” Hastings Center Report, 37 (Oct. 1984): 50–52.

The question of what is a sale also arises with payments for donation of embryos. The question of payment is most likely to arise when the recipient or transferee of an embryo is asked to pay a fee to cover acquisition and storage costs. Because creation of embryos is expensive ($700 to $1.000 per embryo in many American programs) and cryo-preservation charges will arise, it is not unreasonable to ask the recipient of an embryo donation to share production and storage costs. Recoupment of costs can be distinguished from payments that reflect “profit” or other monetary gain from embryo donation. The parallel to organ donation is instructive. The recipient of an organ transplant, rather than the donor family, pays the costs of maintaining brain dead cadavers and surgically removing donated organs. Such payments are consistent with a policy against the buying and selling of organs, and are explicitly recognized in the National Organ Transplant Act of 1984, 42 U.S.C.A. #274e (West Supp. 1987). A similar policy with embryo donations might permit the recipient to share the costs of embryo production and storage.

Radin Margaret , “Market-Inalienability,” Harvard Law Review, 100 (1987): 1849, 1921–36. Whether my argument against a ban on payment of surrogate salaries would also invalidate laws against buying babies or paying fees beyond medical expenses for adoption is beyond the scope of this paper. See Robertson , “Embryos,” supra note 6, at 961, n. 69.

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.

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.

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

Bigelow v. Virginia, 421 U.S. 809 (1975).

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.

537 A.2d 1227, 1253 (N.J. 1988).

Id.

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). 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.

537 A.2d 1227, 1254 (N.J. 1988).

Id.

Id.

Id: 1241–42.

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.”