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Monday, April 07, 2008

She did WHAT with his sperm?!?!, Splitting Articles, and Reprints

The title is a response I get when I tell friends (and perhaps a response I got silently during job talks) about one of the cases I discuss near the beginning of my new law review article, The Constitution and the Rights not to Procreate , which has just been published in the Stanford Law Review, and a companion piece, The Right Not To Be a Genetic Parent?, forthcoming in the Southern California Law Review in September.
Both articles stem from my fascination with two real world cases.

In the alleged facts of the first, Phillips v. Irons, No. 1-03-2992, 2005 WL 4694579, at *1 (Ill. App. Ct. Feb. 22, 2005), which Ethan has blogged about briefly back in 2005, a man tells a woman with whom he is having an affair that he does not want to have children. Throughout the course of their relationship they engage only in oral sex, and during one occasion when she is performing oral sex on him, she, unbeknownst to him, retains his sperm with the intention of using it to conceive a child. Should the woman be permitted to use his sperm if the man objects? Does the answer depend on whether the man will be made a legal parent of the resulting child, or is the mere fact that he will be made a genetic parent against his contemporaneous objection sufficient?

The second is based on the facts of several preembryo disposition dispute cases faced by several state Supreme Courts, see, e.g., A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000); J.B. v. M.B., 783 A.2d 708 (N.J 2001): A husband and wife undergo In Vitro Fertilization (IVF), mixing his sperm with her eggs in culture dishes and allowing those that have been fertilized to develop into 2-8 cell organisms called “preembryos.”  They manage to fertilize six preembryos, two of which are used for implantation in the woman, while the other four are cryopreserved and stored in canisters frozen with liquid nitrogen, for future use.  Neither implanted preembryo leads to a successful pregnancy.  The parties divorce, and reach an impasse as to the disposition of the remaining preembryos”  Can the wife obtain the cryopreserved preembryos and use them for implantation, producing a child against her husband’s contemporaneous objection?  Does the answer depend on whether the husband will be made a legal parent of the resulting child, or is the mere fact that he will be made a genetic parent sufficient?  Does the answer turn on whether the husband and wife executed a prior agreement on the issue?

I use these cases as a jumping off point for discussing whether the law should recognize a "right not to procreate," and in the Stanford paper, more specifically, whether this right is protected by the federal constitution as a number of courts and commentators have suggested.

In so doing, I suggest that talking about a "right not to procreate" is insufficiently sophisticated just as a discursive matter, and instead suggest we conceptualize a family of possible rights not to procreate: The right not to be a genetic parent, the right not to be a legal parent, and the right not to be a gestational parent. This then opens up the question of whether individuals should be protected from unwanted genetic parenthood, that is whether they should have a right not to be a genetic parent (in the Hohfeldian sense) when genetic parenthood is unbundled from legal or gestational parenthood. 

I hope this work is of interest to readers; I will blog about a few issues that are offshoots from these papers that I think are of interest, and the S. Cal piece is still in the editing phase with the law review so I would definitely appreciate any reader comments or feedback.  But my chief purpose in blogging about these projects was to get some advice on two more procedural matters.

First, these papers started as one longer paper, and length constraints plus differences in subject matter (the Stanford paper is mostly con law, the S. Cal paper more system design, legal theory, and applied ethics) caused me to split them.  Timing constraints related to the job market actually forced me to place them during different submission cycles, but I am wondering if others have had success trying to place companion articles together? Have you sent them out simultaneously and told law reviews they could have either or both, or expressed a preference for keeping them together? Maybe this happens rarely enough that there is no good protocol, but I was curious.

Second, my reprints of the Stanford paper just arrived. As a student, I followed the advice in Eugene Volokh's Academic Legal Writing, and sent reprints to any authors whose work I substantively discussed in the articles, as well as a number of others who worked in my field. It produced some good results (invitations to give talks, participate in symposia, etc), but the observed responses were skewed to positive responders (with one exception, no one wrote me back to express displeasure at contacting them). This struck me as a good audience to poll for a more accurate appraisal. Do people find getting reprints in the mail annoying? Are electronic reprints emailed to you even more annoying still? Do you have suggestions different than Eugene's as to whom to send out reprints? Any advice you might have would be valuable to myself and others who are now entering the academic game in long-term roles.

Posted by Glenn Cohen on April 7, 2008 at 11:41 AM in Article Spotlight | Permalink


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I also actually wrote a short piece on the issues presented by the Phillips case (that is what I was blogging about; it was self-promotion!): http://ssrn.com/abstract=700241. I had always imagined returning to these issues to work out all these ideas more carefully -- and I'm looking forward to reading how you worked through the various potential rights. My first cut was quite superficial -- it was an op-ed -- and my thinking about these issues has certainly developed over time. In particular, I actually regret running the constitutional dimensions of the debate with the moral ones, since I suspect one has to get clearer about the moral equities before one starts concocting a constitutional argument. My piece moves too quickly back-and-forth between the moral question and constitutional protections; it sounds like a good plan to have them in separate pieces, though I'm now of the view that the moral question is the one to settle first and foremost. In any case, I'm looking forward to reading all this material once the semester ends.

Posted by: Ethan Leib | Apr 7, 2008 3:18:41 PM

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