Friday, November 18, 2011

Reproductive Freedom

At PrawfsBlawg I found “Incest, Surrogacy, Abstinence Education Funding, Single Parent Reproduction...or What's Wrong with the Regulation of Reproduction.”

It starts with these questions…

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?

Then, we get this…

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.

I have looked at some of the same issues in Discredited Arguments #6, 17, and 18. This seems to back me up…

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.

It’s quite wonky, but if you’re into that sort of thing, go read it.

Overall, “But what about children?” is not a justification for denying full marriage equality as public policy.
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