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COPYRIGHT 2008 Stanford Law School
INTRODUCTION
I. BACKGROUND A. Unbundling the Rights Not to Procreate 1. The rights introduced 2. Conflict 3. Waiver and against whom? B. The "Naked" Right Not to Be a Genetic Parent, Prior-Consent and No-Consent Cases II. Is THERE A FUNDAMENTAL CONSTITUTIONAL RIGHT NOT TO BE A GENETIC PARENT? A. The Argument 1. The contraception cases 2. The abortion cases a. Neither the language nor the holdings of the abortion cases compel recognition of the right not to be a genetic parent b. Is recognizing a right not to be a genetic parent incompatible with the abortion cases? B. Evaluating the Strategy III. COULD ANY INFRINGEMENT SURVIVE CONSTITUTIONAL SCRUTINY? A. The Argument B. Evaluating the Strategy IV. Is THERE STATE ACTION? A. The Argument 1. Enforcing disposition (and other reproductive) agreements 2. In the no-prior-consent cases B. Evaluating the Strategy V. Is THERE AN ADVANCE WAIVER OF CONSTITUTIONAL RIGHTS? A. The Argument B. Evaluating the Strategy CONCLUSION
INTRODUCTION
When do we have a legal right not to procreate, and what does that mean? Modern reproductive technologies have increasingly problematized this issue. Legal analysis has, I will argue, not kept pace. Rather, reflecting the fact patterns that traditionally resulted from our natural biology, it has tended to collapse the rights not to be a genetic, gestational, or legal parent into one monolithic right not to procreate. But each of those rights is conceptually distinct, and unbundling them significantly alters the analysis.
Consider, for example, the following fact pattern:
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." (1) They manage to fertilize six preembryos, two of which are used for implantation in the woman, while the other tour 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 turn on whether the husband and wife executed a prior agreement on the issue?
A number of state Supreme Courts have confronted cases like these, called preembryo disposition disputes, and none of these courts have allowed the preembryos to be used for implantation even when there was an agreement so providing. (2) Some of these courts have suggested that the outcome of these disputes depends on a "right not to procreate" or a "right to avoid procreation" or a "right to procreational autonomy," and many commentators agree. (3) Both rely on Supreme Court cases relating to access to contraceptives and abortion to claim that this is a fundamental right protected by the Federal Constitution.
In this Article, I challenge this claim, and examine four separate strategies for attacking it. Each of these strategies produces a different understanding of what aspects of the rights not to procreate are constitutionally compelled.
Part I, a background section, briefly introduces the unbundling framework I will employ in this Article, which suggests that it is an error to rely on a monolithic conception of the right not to procreate. I instead argue that we should think of the right as containing three possible sticks: 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 (because at present only women can carry a fetus in the uterus, this last right is limited to women). This Part also specifies the scope of the right I am most interested in, what I call the "naked" right not to be a genetic parent (that is, unbundled from other types of parenthood). Finally, it introduces two sets of test cases to be used.
In Part II, I discuss the first strategy, which uses the unbundling to demonstrate that while the Fourteenth Amendment's Due Process Clause and the Supreme Court jurisprudence interpreting it unquestionably protect a fundamental right not to be a gestational parent, they do not compel recognizing a fundamental right not to be a genetic parent. Refusing to recognize the right yields a plausible reading of the contraception cases and the most plausible reading of the abortion cases, although we cannot make the stronger claim that recognizing the right is incompatible with this jurisprudence.
The second strategy, which I discuss in Part III, assumes that the right not to be a genetic parent is a constitutionally protected fundamental right, but suggests that the alleged infringement can survive under the appropriate standard of review, strict scrutiny or perhaps undue burden analysis.
The third strategy, discussed in Part IV, suggests that there is no state action in these cases, and therefore the Constitution does not apply to these disputes at all. I first examine this strategy as to cases of prior consent by contract, and then move on to cases where there is no consent at all.
Finally, in Part V, I examine the advance waiver strategy, which does not dispute that the Constitution applies and that there exists a fundamental right not to be a genetic parent, but instead objects to the further claim that it is not waivable in advance. This strategy is a narrower one, which would lead to a conclusion that the Constitution does not compel an outcome only in cases involving prior consent to genetic parenthood by contract (and potentially some weaker forms of consent as well).
If one or more of these strategies succeeds, I will have shown that the Federal Constitution does not compel an answer to the preembryo disposition agreement disputes or other disputes involving the right not to be a genetic parent. In this Article, I do not seek to provide an answer to what the best approach to these kinds of cases are, which is a matter I explore in other work. (4) But, at least as to U.S. jurisdictions under the current constitutional order, this Article establishes the logically prior claim that the states have the legal discretion to select the approach they favor.
While my argument style is largely analytic, I do not want to mask the fact that these disputes are as emotional and personal as any the law must confront. For many these disputes carry still deeper questions such as what is the proper attitude to take to embryonic life. But unlike the judges in Rome who could throw their hands up and declare a particular dispute non-liquet, or without law to apply, (5) our legal system does not permit us to escape making a decision about how these disputes should be resolved. Whatever we select as the legal rules in this area will have strong emotional consequences for the parties involved, and it is precisely for this reason that these legal analytics are important. That said, it is also important to recognize that behind the abstract issues the law faces there is an inescapable human dimension.
I. BACKGROUND
A. Unbundling the Rights Not to Procreate
1. The rights introduced
As I have said, a number of courts and commentators have made reference to a "right not to procreate" (singular) but are not at all clear on what exactly this right means. I argue that many of these authorities have erred by conceiving of a monolithic "right not to procreate," and we should instead recognize a bundle of rights having multiple possible sticks.
It is fairly intuitive that reproductive technology requires a reconceptualization of the notion of parenthood. (6) That is, a woman can be a parent in (at least) three possible senses: gestational parent, legal parent, and genetic parent--men are restricted by biology to only the last two types of parenthood. To give a fairly obvious example, a woman who undergoes IVF with her egg fertilized by her husband, but whose baby is carried by a gestational surrogate, is the child's genetic mother and (under certain circumstances) legal mother, but not its gestational mother. By contrast, the surrogate is the gestational mother but not the genetic or legal mother.
What is perhaps less apparent is that the same technological innovation also makes clear the need to unbundle the concept of non-parenthood, or rather, freedom from parenthood. So, when we are discussing the right not to procreate, we need to recognize three possible rights not to be a parent--a right not to be a gestational parent, a right not to be a genetic parent, and a right not to be a legal parent. (7) The tendency to view these rights as a monolithic bundle is an outgrowth of the fact that, in natural reproduction, the three rights tend to be clustered together: when a woman seeks an abortion, she is simultaneously exercising a right not to be a gestational, legal, and genetic parent, and we seldom have reason to try and disaggregate the three. But the world of reproductive technology allows us to see that the bundling of these three rights is not inherent.
Conceptually, we can add the three rights not to be a parent and three possible opposing rights to be a parent, for a relationship of six possible rights:
A right not to be a gestational parent
A right not to be a genetic parent
A right not to be a legal parent
A right to be a gestational parent
A right to be a genetic parent
A right to be a legal parent. (8)
Each of these six possible rights is a negative right to be free from interference rather than an affirmative right to assistance. (9) Thus, as I am using the terms, the right to be a gestational parent should be understood as a negative right against interference with your gestation of a fetus rather than a right to have a fetus provided to you for the purpose of gestation. The right to be a genetic parent is a negative right that might be violated, for example, if you were a carrier of a genetic disease and the state or another party attempted to prevent you from having genetic children. It is to be contrasted with an affirmative right to be a genetic parent which might, for example, obligate the state to make available reproductive technology as part of Medicaid. (l0) A society could hypothetically recognize affirmative rights of this sort, but for present purposes I put aside questions relating to those possible rights.
American constitutional jurisprudence appears to treat the right to be and not to be a gestational parent (still in the non-interference sense) as conjoined. (11) But this bundling is not inherent. A jurisdiction could recognize a fight not to be a gestational parent as against a marital partner, such that a husband could not force his wife to carry the fetus to term, and yet not recognize an equivalent right to be a gestational parent, such that the husband could force his wife to abort the fetus. The regime could also be configured in the exact opposite way. Thus, unbundling reveals that one side of the gestational right does not follow ineluctably from the other and must be independently justified as a policy choice.
More generally, even as to the rights not to procreate, one could imagine a legal regime that recognized one or two of these rights but not the remaining one or ones. Further, some disputes about assisted reproduction depend on one of the sticks in the bundle but not others, and in resolving them a court need only determine the existence and applicability of one of the sticks in the bundle.
To illustrate these points, consider the following five fact patterns:
Case 1: Imagine that a husband and wife (12) undergo IVF and cryopreserve additional preembryos. Imagine that they execute an agreement specifying that, in the event of divorce, the wife would be able to implant the preembryos. The couple divorces, and the wife wants to use the preembryos but the husband opposes her doing so. Imagine further, for the purposes of the hypothetical, that under these circumstances the jurisdiction provides that if the wife implants the preembryos the husband will not be made the legal parent of the child unless he consents. (13) In such a case, if the husband claims that notwithstanding the contract, it would violate his rights for the court to allow the wife to implant the preembryos, his claim is really that he has a right not to be a genetic parent against his (contemporaneous) will. His claim is premised on a right not to be a genetic parent. He has no gestational rights to assert. (14)
Case 2: This case is the same as Case 1, except the jurisdiction does not provide that the husband will be free from the obligations of legal parenthood. In such a case, the husband's claim is that he has both a right not to be a genetic parent and a right not to be a legal parent. (15) He has no gestational rights to assert. (16)
Case 3: A gestational surrogate is carrying the genetic offspring of the husband and wife. As part of her surrogacy agreement she has agreed that she will not do anything to endanger the fetus, including getting an abortion, without the permission of the husband and the wife. (17) The agreement also provides that the husband and the wife will be the legal parents of the child, assuming all attendant financial obligations. Assume that the jurisdiction allows such assignments of parentage. Notwithstanding the agreement, in the third month of her pregnancy, the surrogate announces her intention to get an abortion, a course of action the husband and the wife attempt to prevent. If she argues that enforcing the agreement violates her rights by preventing her from getting an abortion, then her claim is really that the enforcement infringes her right not to be a gestational parent against her will. Thus, it is necessary and sufficient for her claim that she has a right not to be a gestational parent, it is neither necessary nor sufficient that she have a right not to be a legal parent or a genetic parent. (18)
Case 4: A gestational surrogate is carrying the child of the husband and the wife. Prenatal testing indicates that the child has a significant genetic abnormality. The husband and the wife want the surrogate to have an abortion. She refuses to do so. If the husband and the wife argue that allowing her to continue with the pregnancy would violate their rights, their claim is really that it violates their right not to be genetic parents against their will (as well as their right not to be legal parents in any jurisdiction that would attach legal parentage to the genetic parents in this case). It is neither necessary nor sufficient that they have a right to be or not to be gestational parents. (19)
Case 5: During the course of their marriage and unbeknownst to the husband, the wife has an affair with another man, Alfred. When the wife conceives, the husband mistakenly believes the child is his. Two years after the child's birth, however, the wife confesses her adultery. Assume that the law of the jurisdiction is that the husband of a woman who has given birth is presumed to be the legal father of the child, and that this state of affairs cannot be changed after two years has gone by. (20) If the husband argues that the parentage determination violates his rights, his claim is that it violates his right not to be a legal parent against his will. It is neither necessary nor sufficient that he has a right not to be a genetic parent, and gestation is not implicated. (21)
These are only a few examples of fact patterns--we can easily come up with many more--but it gives some demonstration of the utility of discussing these possible rights in an unbundled way. (22)
2. Conflict
Unbundling also reveals that various conceptions of procreative rights can conflict with one another. To give a straightforward example, if a woman undergoes IVF with her husband and implants the preembryo and the husband decides at some point in gestation that he no longer wants to be a genetic parent, but she decides she wants to continue the pregnancy, there is a conflict between his right not to be a genetic (and possibly legal) parent and her right to be a genetic, gestational, and legal parent. To give some other examples, in the two surrogacy cases discussed above, the couple's right to be genetic and legal parents conflicts with the gestational surrogate's right not to be a gestational parent (Case 3), and the couple's right not to be genetic and legal parents conflicts with the gestational surrogate's right to be a gestational parent (Case 4). (23)
The possibility of conflict between these rights suggests that, if we recognize all of them, we need some mechanism to resolve these conflicts. One possibility is a meta-rule which tells us how conflicts between each of the six rights are to be resolved. (24) A different possible method would be to apply some balancing device, not at the categorical level, but at the level of a particular case taking into account idiosyncratic facts that might determine whose interest we should favor. (25) A system could also resolve the conflict by following a written agreement or imposing a majoritarian (or other) default rule in the absence of an agreement. Still another possibility would be some type of best-interests inquiry focused on the potential child.
3. Waiver and against whom?
Even if we recognize all six sticks in the bundle of rights, we have a further question of whether they can be waived, and, if so, how such a waiver can be effectuated. (26) Instead of an on-off switch, we have multiple possibilities. We could decide that these rights are never waivable, (27) waivable in advance, or waivable only contemporaneously. Once we have unbundled the rights, we can see that a jurisdiction could make different decisions about waiver for each of the rights.
We could also specify different standards as to what qualifies as a "waiver" of each right. I mainly focus on contractual waivers, but, as Professor Edward Rubin has suggested, waivers can be effective even if they are not an intentional relinquishment of the right through an "explicit statement of waiver" but instead through a mere "fail[ure] to assert the right or tak[ing] an action inconsistent with its exercise," which is referred to as "forfeiture." (28) So, for example, we could hold that engaging in intercourse constitutes a waiver of the right not to be a legal parent, (29) or that agreeing to participate in IVF itself constitutes a waiver of the right not to be a genetic parent. (30)
There is also a further dimension to the waiver question that I want to identify, if only to bracket off. As Professor Margaret Jane Radin and others have recognized, for things like sperm, egg, and fertilized embryos, a regime might make them truly inalienable (they cannot be given away or sold), market inalienable (they can be given away but not sold), or completely alienable (they can be given away and sold). (31) There are interesting questions relating to this issue, but for present purposes I want to distinguish what we might term anti-commercialization arguments about reproductive technology from anti-contractualization arguments--the former object to the buying and selling of reproductive goods, the latter to the imposition of the binding regime of contract onto those disputes, even if money never changes hands. (32) I will focus on the anti-contractualization arguments.
A second attribute of interest is against whom the right attaches--other individuals, the state, or both? We again might make this determination differently for each of the different rights. A jurisdiction could recognize a right not to be a genetic parent against the state, such that the state could not use discarded genetic material for procreative purposes (if that became possible), but not recognize such a right as against a person's marital partner, such that there is no right to prevent the implantation of cryopreserved preembryos. As we will see in Part IV, at the constitutional level, this distinction manifests itself in the question of state action.
B. The "Naked" Right Not to Be a Genetic Parent, Prior-Consent and No-Consent Cases
My focus in this Article is on the "naked" right not to be a genetic parent, unbundled from unwanted gestational or legal parenthood. I concentrate on cases where someone will be made a genetic parent, but only a genetic parent, against his or her will, and there is no imposition of unwanted gestational or legal parenthood. The preembryo disposition disputes, with which this Article began, provide such a case. No one will be forced to gestate a child against her will, and three states (Colorado, Texas, and Washington) have statutes that specify that if a fertilized preembryo is implanted after the parties divorce, a former spouse (who contributed genetic material) is not deemed to be the legal parent of any resulting child if the former spouse does not contemporaneously consent to implantation. (33) A second example is someone who provided sperm or egg for reproductive use who demands the return of his or her gametic material. (34) Here again, there is no forced gestation, and a number of states have by statute absolved donors of gametic material from legal parenthood obligations. (35)
In each of these examples there was prior consent to genetic parenthood but a contemporaneous objection. Again, there are important variations in the form and strength of that prior consent. For example, if the consent in the preembryo case comes from a well-drafted contract, it looks more like waiver. If it is inferred from participating in IVF or cryopreservation, then it is forfeiture.
I want to contrast both of these cases with ones where there is no consent at all. Let me use two cases as examples. The first is a real case, Phillips v. Irons, with quite salacious facts alleged by the plaintiff: 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 and uses it to conceive a child. (36) The second is a science fiction thought experiment: Imagine it became possible to use a man's leftover dead skin in the place of semen to create a child, and an individual collected that material for these purposes from the bathtub of a hotel. Call this the bathtub case. (37) While the bathtub case is still science fiction, science fact is quickly catching up: German scientists have taken bone marrow from adult males, derived adult stem cells from it, and coaxed them into spermatagonial cells, the cells found in the testes that normally mature into sperm cells. (38) Still more recently, two teams of scientists announced they had successfully developed methods for making induced pluripotent stem cells, that is, reprogramming adult skin cells and "making the cells into blank slates that should be able to turn into any of the 220 cell types of the human body." (39)
With that background we can ask, does the Constitution compel giving an individual a right to prevent being made a genetic (but only a genetic) parent in any of these cases? In particular, does it enable the individual to intervene at a stage when no one has begun gestation? (40) This is the central question of this Article, to which I now turn.
II. Is THERE A FUNDAMENTAL CONSTITUTIONAL RIGHT NOT TO BE A GENETIC PARENT?
A. The Argument
This strategy denies that the Constitution covers a naked right not to be a genetic parent as a fundamental right for substantive due process purposes. Courts and commentators claiming the existence of a constitutional right not to procreate have relied on the abortion cases and, to a lesser extent, the contraception cases, as support for that right. I argue that the contraception cases do not mandate that conclusion and that the abortion cases can be read as implicating only a right not to be a gestational parent, not a right not to be a genetic parent.
1. The contraception cases
A number of courts and commentators rely on the contraception cases, Griswold, Eisenstadt, and Carey, to support a "right not to procreate," forbidding implantation in the preembryo disposition cases, or what I call a right not to be a genetic parent. (41) But I will discuss several arguments that drive a wedge between these cases and the right not to be a genetic parent.
Griswold v. Connecticut found unconstitutional a statute making it illegal to use contraceptives or to aid or counsel another in doing so. (42) The problem with the statute was that it "operate[d] directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation." (43) The Court then famously discussed a series of cases which it interpreted as "suggest[ing] that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance" and found that these "[v]arious guarantees create zones of privacy." (44) It concluded in a short and unelaborated passage that:
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama, 377 U.S. 288, 307 (1964). Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. (45)
In Griswold, the constitutional problem was the state's invasion into the "notions of privacy surrounding the marriage relationship," and the chief evil was the state's invasion of the "sacred precincts of marital bedrooms for telltale signs of the use of contraceptives." Griswold thus emphasized the invasion of the marital "space," not the interference with procreative decisions per se as the harm; the fact that contraceptives were used to prevent procreation was incidental. The reasoning of Griswold would appear to apply equally to a decidedly non-procreative activity, for example the use of sex toys in the marital relationship, where police searches of marital bedrooms would be equally invasive.(46) From Griswold itself, then, there is little to suggest that there exists a right not to be a genetic parent that applies here--enforcing an agreement between now-divorced parents as to use of fertilized preembryos does not require the invasive intrusion by the state into the "marital space."
Seven years later, in Eisenstadt v. Baird, the Court struck down a Massachusetts law similar to the one in Griswold, a law that criminalized the provision of contraceptives but only as to unmarried persons for the purpose of preventing pregnancy. (47) The challenge to the statute was made under the Equal Protection Clause not the Due Process Clause, with the question being "whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried persons under" the statute. (48) The Court held there was not. Having concluded that the "the Massachusetts statute [could not] be upheld as a deterrent to fornication or as a health measure," it went on to wonder whether it might "nevertheless, be sustained simply as a prohibition on contraception?" (49) The Court noted that "[w]e need not and do not, however, decide that important question in this case because, whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike." (50)
The Court then essentially decided the case using the strategy of "hypothetical dilemma"--if P then Z; if Q then Z; P or Q; therefore Z. If, on the one hand, "under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible." (51) If, on the other hand, "Griswold is no bar to a prohibition on the distribution of contraceptives, the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons" because "[i]n each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious." (52) Therefore, the ban was impermissible.
This required a bit of fancy footwork since Griswold emphasized the importance of the marital relationship. The Court explained, however, in a now-famous passage that:
It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. (53)
This passage significantly expanded and transformed the conception of privacy at work in Griswold--from a sense of privacy that protects against state intrusion into the marital bedroom into a more decisional right protecting against state intrusion into personal decisions.
It is this passage that advocates for a right not to be a genetic...
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