Incest, Surrogacy, Abstinence Education Funding, Single Parent Reproduction...or What's Wrong with the Regulation of Reproduction

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to reproductive technologies? Should the state fund abstinence education? 

One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal.

In Regulating Reproduction: The Problem with Best Interests, coming out shortly in the Minnesota Law Review (the penultimate draft now available on SSRN), I show why BIRC (or if you prefer, child welfare) arguments are a non-starter in justifying most regulation of reproduction, despite their dominance of the discourse. This is the first part of a larger project, and its companion paper Beyond Best Interests will appear in the Minnesota Law Review’s April 2012 issue, and should go on SSRN shortly.

What is the problem with best interests?

Drawing on insights from bioethics and the philosophy of identity (especially Derek Parfit’s work), I show why the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter: unless the state’s failure to intervene would foist upon the child a “life not worth living,” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, I show that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level the Article also shows that this reliance on BIRC justifications is in tension with the implicit rejection of similar reasoning by courts unwilling to recognize wrongful life torts.

After demonstrating why the BIRC argument is unworkable as stated, I considers three possible reformulations of the argument that would save it, including one that focuses on population welfare (and non-person-affecting principles). I explain why none of these approaches is persuasive including by discussing their disturbing implications as to enhancement and eugenics.

In the companion paper, Beyond Best Interests, I consider a set of quite different substitute justifications for regulating reproduction – reproductive externalities, wronging while overall benefitting, legal moralism, and virtue ethics approaches – and evaluate their plausibility.

While Regulating Reproduction: The Problem With Best Interests is almost in print (the final version will hopefully make the diagrams a bit more readable), I still have time to work on the companion paper so I welcome any comments on- or offline.  I will also blog a bit later this month about a related paper, Rethinking Sperm-Donor Anonymity: Of Changed Selves, Nonidentity, and One-Night Stands, forthcoming in the Georgetown Law Journal, which I will post on SSRN shortly.

This project has been a long time in gestation, so I redouble my thanks to all those of you who have given me comments and invited me to present at your workshops and conferences (hopefully you are all thanked in the paper), since you have helped me improve this work immeasurably.