Chapter 2. The constitutional aspects of procreative liberty

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1 Chapter 2 The constitutional aspects of procreative liberty Currently, there is little direct regulation of in vitro fertilization (IVF) and donor-assisted reproduction in the United States, although it is likely that further regulation will occur (chapter 3). Regulation of noncoital reproduction raises questions of the constitutional power of the state in intervening with procreative choice. This chapter addresses the constitutional status of that choice and its application to IVF and donor-assisted reproduction. PROCREATIVE LIBERTY AND THE RIGHT TO PROCREATE In discussions of procreative liberty, actions designed to avoid procreation and actions designed to bring it about must be distinguished. In the United States, a constitutional right not to procreate has been clearly established by a series of Supreme Court decisions involving contraception and abortion. The burdens of unwanted pregnancy and child rearing are deemed so substantial that any competent person-married, single, adult, minor-may choose to abort until the time of viability and use contraceptives to avoid pregnancy (1). The right to procreate-to do those things that will lead to biologic descendants-is also of great significance to persons, but it has not received explicit legal recognition because the state has never attempted to restrict married couples from having children when and however they can (2). Without attempts at state regulation, the need or occasion to define the limits of a married couple's right to procreate has not arisen. Noncoital conception and donor-assisted reproduction raise questions that require a more precise definition of a constitutional right to procreate. Although there are few precedents directly on the point, there is good reason to expect the courts to recognize a constitutional right to procreate by noncoital and donor-assisted means. Such a right will not prevent regulation, but it will protect individual procreative choice unless there is a compelling need for state intervention. THE ARGUMENT FOR A CONSTITUTIONAL RIGHT TO PROCREATE Most persons would consider the right to reproduce to be a fundamental human right. Indeed, several international declarations of human rights speak about the right of "men and women of full age... to marry and found a family" (United Nations, 1978) (3). However, these declarations have not been ratified by the United States and therefore have no legal effect. Moreover, there have been few cases brought to the United States Supreme Court that test the question directly. Aside from laws for involuntarily sterilizing mentally retarded persons and laws on fornication and cohabitation that attempt to confine reproduction to marriage, there have been few attempts by the state to stop people from reproducing (4). However, on several occasions, the Supreme Court has indicated strong support for procreative liberty, particularly of married persons. Although these cases have not involved state attempts to prevent married couples from reproducing, they do suggest that the Court would recognize such a right if it were ever faced with a direct limitation on a married couple's desire to reproduce by sexual intercourse. The language in these cases is broad and pre sumably would extend to both coital and noncoital reproduction. In Skinner v Oklahoma, the Court struck down a mandatory sterilization law for habitual criminals because it interfered with marriage and procreation, which are among "the basic rights of man" (5). In Meyer v Nebraska, the Court stated that constitutional liberty includes "the right of an individual to marry, establish a home and bring up children" (6). In Stanley v Illinois, the Court observed that "the rights to conceive and raise one's children have been deemed 'essential,' 'basic civil rights of man,' and 'rights far more precious than property rights'" (7). Another case recognized that "freedom of personal choice in matters of marriage and family life" is one of the liberties protected by Supplement 1 38

2 the due process clause of the Fourteenth Amendment (8). Finally, Justice Brennan, in Eisenstadt v Baird, stated: "If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child"(9). Because these statements do not arise in cases in which the state has tried to prevent married persons from procreating, much less from reproducing by noncoital or donor-assisted means, they are not precedents that are binding in later cases. However, they do strongly suggest that the Supreme Court would recognize some right to reproduce, at least for married persons. For example, it is likely that laws limiting a married couple's right to have children when and as they choose by sexual intercourse (such as mandatory sterilization, contraception, or abortion laws) would be struck down as a violation of the fundamental right to procreate.* The argument for the right to reproduce coitally is clearest in the case of married persons but can also be made for unmarried persons. Although most of the Supreme Court dicta cited above apply explicitly to married persons, a strong argument can be made that unmarried persons also have a right to reproduce coitally (10). Unmarried persons also have needs or desires to have and rear biologic descendants and may be as competent parents as married couples. t They may not be able or willing to marry to satisfy this desire. Indeed, banning coital or noncoital conception by single persons seems inconsistent because an unmarried person cannot be forced to use contraception, abort, or relinquish the rearing of an illegitimate child. Although the argument for the right of unmarried persons to reproduce coitally persuades many persons, it is not clear that this argument would be accepted by the Supreme Court. The single person's right to use contraception and to continue a pregnancy does not necessarily entail a right to conceive in the first place. The Supreme Court has not yet held that fornication laws violate an unmarried person's right of privacy. Given the tra- *Severe overpopulation might constitute the compelling interest necessary to uphold interference with reproduction by sexual intercourse. t Single parenthood is especially difficult for poor, young, single mothers who are unemployed or lack skills. But even they and older, more financially secure single persons may be competent rearers of children. 48 Supplement 1 clition of reproduction within marriage and the importance of the family,:j: the Court is most likely to recognize a married couple's right to reproduce. The lack of explicit constitutional protection, however, does not mean that it is unlawful or unethical for physicians to treat infertility in single persons or otherwise to assist their reproduction. State and federal law do not now prohibit noncoital reproduction by unmarried persons. Thus, physicians are legally free to assist single persons in reproduction. INCLUSION OF NONCOITAL AND DONOR ASSISTED REPRODUCTION WITHIN THE RIGHT TO REPRODUCE The Supreme Court statements supporting a couple's right to marry and found a family generally assume that reproduction will occur only as a result of sexual intercourse, because the statements were made before IVF, donor gametes, and other forms of assisted reproduction became widely available. However, the couple's interest in reproducing is the same, no matter how reproduction occurs. The values and interests underlying a right of coital reproduction strongly suggest a married couple's right to noncoital reproduction as well, and arguably, to have the assistance of donors and surrogates as needed. Coital reproduction is legally protected not for the coitus but for what the coitus makes possible: it enables the couple to unite egg and sperm in order to acquire the possibility of rearing a child of their own genes and gestation. II The use of noncoital techniques, such as IVF or husband insemination :j: The importance of family tradition is evident in Justice Powell's opinion in Moore v City of East Cleveland, 431 US 494 (1977), in which a zoning ordinance preventing a grandmother from living with grandchildren was struck down on the basis of a substantive due process right to live with one's lineal descendants. Surely the right of a married couple to have children is a stronger candidate for fundamental right status than is a grandmother's right to live with grandchildren. This view was recognized for IVF between a married couple in Flannery (1979). A specific analysis ofthis view as applied to collaborative reproduction with donors appears in Robertson (1986a) and United States Congress (1988). II A traditional Catholic view is that the unitive and the procreative should be combined in one act, thus making the separation of sex and reproduction, either to procure pleasure or to procure offspring, wrong. See McCormick (1982) for a description of this view. The law does not, and is not likely to, reflect this view. Fertility and Sterility

3 (HI) to unite egg and sperm, necessitated by the couple's infertility, should then also be protected. The married couple's right to reproduce should thus extend to noncoital means of conception, which include the wide range of choices made possible by developments in IVF. The couple would then have the right to create, store, and have transferred to them extracorporeal preembryos created by their egg and sperm. They would have the right to determine whether their gametes would be used for reproduction and determine the disposition of preembryos created with their gametes, which would include a right to donate preembryos to other couples. Indeed, the right might also be found to extend to posthumous reproduction, which might occur with stored sperm or preembryos after the death of a spouse.~ A strong legal argument can also be made that a married couple's procreative liberty would include the right to enlist the assistance of a third-party donor or surrogate to provide the gametes or uterine function necessary for the couple to beget, bear, or otherwise acquire for rearing a child genetically related to one of the partners. Although not as directly entailed as the right of noncoital conception, the logic and values behind protecting marital procreation suggest that the need for assistance of a third-party collaborator should be similarly treated. The donor is essential if the couple are to rear a child who has a gametic or gestational connection to them.** Because the couple would be free, if fertile, to reproduce as often as they wanted to, they should be free to procreate with the help of gamete donors or a surrogate. Not all commentators agree with the logic of this position with regard to surrogacy because of the im- 1f However, the couple's right to reproduce might not include doing everything possible with extracorporeal preembryos and preembryo or gamete storage. Questions concerning the ability to transfer stored gametes and preembryos to others or to manipulate the genes of future offspring may or may not be included within the couple's procreative liberty. This will depend on the social practices and meanings that evolve as these technologies become available and the full range of their risks and benefits becomes known (Robertson,1983; 1f). ** With donor egg or sperm, the wife will be bearing, and the couple rearing, the genetic child of one partner. When they contribute a preembryo to another couple, they are reproducing by providing the genes for another's child. If they receive a preembryo donation, they are reproducing in the sense of gestating and rearing children, the usual result of coital reproduction. In the case of surrogates, the couple will be rearing a child with genes of one or both partners. pact of gestation (Capron, 1988). In addition, the courts have not yet recognized a constitutional right to have surrogacy contracts enforced. The "Baby M" case (11) rejected the notion of a constitutional right to hire a surrogate mother and to enforce her agreement to give up custody of the child at birth. The court limited the infertile couple's claim of a "right of procreation" to having genetic offspring without also recognizing their right to rear according to the terms of a surrogate contract. It is unclear whether other courts facing surrogacy issues will rule similarly. But if this argument for procreative liberty is accepted, couples attempting to reproduce would have the right to engage in a wide range of activities involving donors, surrogates, and extracorporeal preembryos. They would have the right to contract with others for the provision of gametes or preembryos, with the contract settling the parties' rearing rights and duties toward resulting offspring. A contractual approach would also extend to contracts with surrogates for them to gestate the couple's preembryo and return it to them for rearing. Strictly analyzed, the logic of marital procreative liberty would require the state to enforce such contracts and would allow fees to be paid to donors for the various services provided. States might then regulate the circumstances under which parties would enter into reproductive contracts, but they could not ban such contracts altogether. In short, the interests and values supporting the right to reproduce by sexual intercourse apply equally to noncoital activities involving the extracorporeal preembryo. Although the case is strongest for a couple's right to reproduce noncoitally, a strong argument can also be made for their right to enlist the aid of gamete donors and surrogates. Both methods enable a couple to rear a child who is the biologic descendant of, or who has been gestated by, one of them. Unmarried persons would also have the right to reproduce through extracorporeal fertilization and donor assistance if their right to coital reproduction were recognized. LIMITS ON THE RIGHT OF NON COlT AL REPRODUCTION If the logic of procreative rights as here analyzed is accepted by the courts, the procreative rights of married couples would extend to noncoital activities that are essential for them to reproduce. Constitutional rights, however, are not absolute, and restrictions might be imposed when necessary to Supplement I 58

4 serve important state interests. The question is whether specific ART procedures pose significant harm to state interests sufficient to justify restriction of the procreative choices involving them. Noncoital and donor-assisted reproduction raise a variety of concerns, from duties to extracorporeal preembryos, to concern for the welfare of offspring, the family, and donors and surrogates. There are also more general societal concerns about dehumanizing or reifying reproduction through excessive technologizing and commercialization. These concerns will influence the choice of many individuals and may lead some to conclude that state restrictions on some reproductive techniques, particularly surrogacy, are justified. However, such concerns may not be a constitutionally sufficient basis for preventing couples from using these techniques when the need for any particular restriction is scrutinized. Preembryo freezing and donation or contracts with gamete donors and surrogates may not risk sufficient tangible harm to the parties or the offspring to warrant state interference with the constitutional right to procreate (see chapters 18 to 20, 22, 24 and 25; ~). Under this theory existing laws that appear to limit noncoital reproduction by married persons are constitutionally dubious and may well be struck down if challenged in the courts. Fetal and preembryo research laws that appear to restrict a married couple's control ofpreembryos for reproduction are most vulnerable to attack (chapters 10 and 26). Also, existing legal presumptions about who is the rearing father or mother in situations of donor gametes and surrogacy may also fall when the full implications of marital procreative liberty are recognized. Two kinds of state restrictions, however, should be constitutionally permissible. One would be laws that prevent the couple, donors, and surrogates from maintaining anonymity if the offspring's welfare required disclosure (chapter 15; ~). A second restriction would be regulations designed to assure free, informed entry into donor and surrogate transactions in order to protect the autonomy of the parties.~ Intangible religious, moral, or societal concerns about the nature of reproduction, family, the reproductive roles of women, and the power of science would not ordinarily justify interference with procreative liberty. Such deeply held religious or moral views about reproductive relations are of immense importance to individuals and to society, for these views represent value choices that constitute indi- 6S Supplement 1 vidual and societal moral commitment. However, moral, religious, or symbolic concerns that do not have direct, tangible effects on others are not sufficient constitutional grounds for interfering with fundamental rights of persons with different views.tt Views of the rightness or wrongness of particular means of conception might properly animate individual and institutional choices to avoid, seek, or provide such services. Neither physicians nor institutions in the private sector are obligated to provide noncoital or extracorporeal reproductive services of any kind. Nor are persons obligated to use their reproductive capacity to assist the reproduction of others. The state is not constitutionally obligated to fund such services any more than it is obligated to fund abortions.:j::j: But there is a limit to state interference with noncoital reproductive choice, for the interests of infertile couples in forming biologically related families implicate important interests of personal privacy. The need for state limits on ART should be judged by the same standards that are applied to limits on coital reproduction. The constitutional status of procreative liberty illustrates the recurring dilemma of fundamental rights in a society of limited governmental powers. Recognition of procreative rights is essential in the constitutional scheme; yet, it permits activities that may run counter to the values that a majority hold and may even lead to a transformation of those values. Even so, the community may not legally prevent the exercise of those rights other than by persuasion, even if an impact on its value structure occurs. Currently, it appears that the constitutional status of procreative liberty requires that the legal system, except possibly for surrogacy, leave ART decisions largely to the moral discretion of the physicians, patients, and institutions involved. tt There is no way to understand Griswold v Connecticut, Roe v Wade, Eisenstadt v Baird, and similar cases than as standing for the proposition that symbolic or moral evaluation of conduct alone does not justify interference with fundamental rights. The community's power to enforce or impose morality stops at the threshold of another person's fundamental rights. :j::j: Because procreative liberty (like most constitutional rights) is a negative, not a positive, right, it obligates the state to refrain from interferences with reproductive arrangements among consenting adults and physicians. The state is not obligated to fund these activities or allow them in state institutions, any more than it is obligated to fund abortions or contraception. (Harris v McCrae, 448 US 297 [1980]; Maher v Roe, 432 US 464 [1977]; Poelker v Doe, 432 US 519 [1977].) Fertility and Sterility

5 REFERENCES 1. Griswold v Connecticut, 381 US 479 (1965); Roe v Wade, 410 US 113 (1973); Planned Parenthood v Danforth, 482 US 52 (1976); Bellotti v Baird, 443 US 622 (1979); City of Akron v Akron Reproductive Center, 103 S Ct 2481 (1983). 2. Dandridge v Williams, 397 US 471 (1970) (Indirect restrictions, such as limits on welfare benefits, are not considered restrictions on procreative choice.) 3. For similarly worded statements, see The International Covenant of Civil and Political Rights, Art. 23, 1976; European Convention on Human Rights, Art. 12, Buck v Bell, 274 US 200 (1927) (Upholding the state's right in certain circumstances to sterilize mentally retarded persons involuntarily.) us 535, 541 (1942) us 390, 399 (1923) us 645, 651 (1972) us 632, (1974) us 438, 453 (1972). 10. Eisenstadt v Baird, 405 US 438, 653 (1972); Carey v Population Services, 431 US 678 (1977) A 2d 1227 (NJ 1988). Supplement 1 78