July 22, 2011 | Posted By David Lemberg, M.S., D.C.

Procreative liberty — the freedom to make your own choices regarding procreation — encompasses a wide range of putative rights. Over the course of the last several decades, many landmark cases decided by the Supreme Court have defined and expanded the rights pertaining to procreative liberty.

Procreative liberty has been defined as “freedom in activities and choices related to procreation”.1 However, this usage does not represent settled case law. In the 1972 case Eisenstadt v. Baird,2 Justice William Brennan discussed the right of privacy. Justice Brennan famously opined that individuals, both married and single, should be "free of unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child".

But this particular right has been interpreted as the right not to reproduce, i.e., a right to use contraception and abortion (before the fetus is viable).

It has been suggested that the Supreme Court has not "analyzed the interests behind this protection, nor taken account of new reproductive technologies".3 There is a compelling case that this right to privacy can also be interpreted as the right to reproduce.

If there is a right to reproduce, this would include noncoital as well as coital reproduction. For example, the availability of in vitro fertilization (IVF) has launched a brave new world of reproductive capabilities. Human cloning could be considered for inclusion in the right to reproduce. More broadly, procreative liberty should be extended to encompass a right to reproduce. Essentially, my gametes are mine, or rather they're me. Just as I can walk down the street freely, so should I be able to walk my gametes into a clinic and use them as part of any collaborative reproduction program. Provided, of course, that such a program is legal from all other points of view.

Single, married, heterosexual, homosexual, or otherwise — none of this matters in the context of procreative liberty. All individuals should have this right as part of a free society. Times have changed, as Bob Dylan knew they would. Several U.S. states have legalized same-sex marriage. Many more may follow, despite furious opposition (as in California). The notion of a traditional nuclear family has been superseded long ago by family structures where, pretty much, anything goes.

But the right to reproduce does pose many deep questions across a range of issues, particularly those involving important state interests and potential harm to other persons. As well, the status of all parties involved, e.g., gamete donors in the case of IVF or DNA donors in the case of human cloning, needs to be formalized. These are a few of the concerns.

The notion of “unpacking" can be applied to the de-linking of genetics, gestation, and child-rearing. Unpacking is a term from computer science, suggesting methods of deriving large amounts of information from a very small receptacle. This is particularly apt when applied to human reproduction. When the Homo sapiens sapiens DNA code is unpacked, a human is formed. But when we apply new science to the process of procreation, we need to look before we leap. And we need to understand more clearly what we mean by procreative liberty.

1Robertson JA: Embryos, families, and procreative liberty: The legal structure of the new reproduction. Southern Cal Law Rev 59:939-1041, 1986

2405 U.S. 438 (1972)

3Robertson, op.cit.

The Alden March Bioethics Institute offers graduate online masters in bioethics programs. For more information on the AMBI master of bioethics online program, please visit the AMBI site.

1 comments | Topics: Bioethics and Public Policy , Bioethics and the Law , Reproductive Medicine



Marilynn wrote on 06/09/13 2:19 PM

I reunite families for free separated for all sorts of reasons many by parents who signed reproductive agreements promising they would not assume parental responsibilities for any offspring born of their agreements. I also am also really hoping to figure out how to stop families from being torn apart this way and stop people from having their birth records falsified and stop people from witholding critical information from their family about the existence of relatives they need to know in order to make informed reproductive decisions for themselves.

Its fine for people to exercise their procreative liberties in private, but that does not mean they should not be accountable for their own offspring when they are born. The problem is not that people are reprocing in novel ways its that they are trying to privately contract away their parental obligations in advance of their children's births and we are allowing it. The problem is that their offspring are then born without the same rights as everyone else. Everyone else has to disclose the existence of their offspring and take responsibility for them and go to court if they want for someone else to take over their responsibilities. That court process protects minors against being trafficked and donor offspring are not being protected obviously.

Rights are not something one person can exercise for another - you can't exercise my right to vote or my right to reproduce the right is resident within me and I am always personally responsible for the outcome of my reproductive behavior or my vote. So people who are not reproducing are not exercising their right to reproduce. They are not conceiving children with the help of other people's gametes. We should not be holding those people accountable for children created as the result of another person's reproduction. Doing so results in the falsification of medical records for the resulting offspring and of course undermines vital statistics used as the basis for medical research on heritable disease and birth defects that our tax dollars pay for - it makes no sense at all that we actually allow people to lie in the name of privacy. If the information impacts someone other than yourself it is not yours alone to keep private or divulge it belongs to everyone impacted by it and unfortunately the current law treats people who pay for these services and those who are paid as being the gatekeepers of truth for their entire family. It sucks is all. It's a matter of inequality

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BIOETHICS TODAY is the blog of the Alden March Bioethics Institute, presenting topical and timely commentary on issues, trends, and breaking news in the broad arena of bioethics. BIOETHICS TODAY presents interviews, opinion pieces, and ongoing articles on health care policy, end-of-life decision making, emerging issues in genetics and genomics, procreative liberty and reproductive health, ethics in clinical trials, medicine and the media, distributive justice and health care delivery in developing nations, and the intersection of environmental conservation and bioethics.