Academic

Cohen on the Right Not to be a Genetic Parent

By Lawrence Solum

I. Glenn Cohen (Harvard Law School) has posted The Right Not to Be a Genetic Parent? (Southern California Law Review, Vol. 81, p. 1115, 2008) on SSRN.  Here is the abstract:

Should the law recognize an individual's right not to be a genetic parent when genetic parenthood does not carry with it legal or gestational parenthood? If so, should we allow individuals to waive that right in advance, either by contract or a less formal means? How should the law's treatment of gestational and legal parenthood inform these questions? Developments in reproductive technology have brought these questions to the fore, most prominently in the preembryo disposition cases a number of courts have confronted - disputes over the use of stored frozen preembryos that couples have fertilized in the course of In Vitro Fertilization (IVF) - but other examples abound.

In this Article, I argue that in analyzing these cases it is essential to unbundle the possible rights not to be a genetic, gestational, and legal parent, and to recognize that the three rights do not stand and fall together. I show that we cannot move from the discourse surrounding the rights not to be a gestational and legal parent to a justification for a right not to be a genetic parent. Instead, I argue that the normative mooring of the right not to be a genetic parent is best understood as a way of protecting individuals from what I call "attributional parenthood," a harm that stems from the social assignment of the status of parent to the provider of genetic material that persists notwithstanding the fact that the legal system has declared him or her a non-parent.

Using this framework, I argue for the recognition of the right not to be a genetic parent. However, I reject the claim, common among courts and commentators, that this right should not be capable of advance waiver. I instead conclude that we should permit advance waiver of the right through contract, with several interventions aimed at improving contractual consent. In preembryo disposition disputes where the parties have not contracted, I argue for a general default rule of non-use, perhaps with a sub-rule permitting use when non-use would mean the impossibility of one party ever having any genetic children.

And from the text:

In this Article, my focus is on a ?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 their will in such a case, and three states (Texas, Washington, and Colorado) have statutes specifying 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.21 A second example is someone who provided sperm or egg for reproductive use who demands the return of his or her gametic material.22 Here again, there is no forced gestation, and a number of states have, by statute, absolved donors of gametic material from legal parenthood obligations.23

And from later in the article:

I have argued that courts and commentators are wrong to conclude that one should not be able to relinquish one?s right not to be a genetic parent by contract. In part this error is driven by reliance on inapposite arguments connected to other sticks in the bundle of rights not to procreate. In part it is driven by a flawed analogy to judicial hostility to the enforcement of surrogacy contracts, an analogy which disregards the central importance of the transformative experience of gestational bonding in that context. I have instead argued that the threat of cognitive biases and affective-forecasting errors in this context are overstated and cannot meet the high bar necessary to justify prohibiting individuals the freedom to contract in this realm; that freedom of contract is valuable not only as the respect due for a mature and autonomous will, but also as a necessary mechanism to enable individuals to pursue reproductive goals. Rather than justifying the nonenforcement of contracts, these concerns are better understood as guides for how to improve the consent process. Of course, even with these interventions in place, there will be individuals that come to regret having entered into these contracts. But that is a risk that is endemic in all contracting, and I have argued that we should resist the claim that these contracts deserve exceptional treatment.

Highly recommended!

For more, see Cohen's The Constitution and the Rights Not to Procreate (Stanford Law Review).

Full post as published by Legal Theory Blog on October 21, 2008 (boomark / email).