Academic

My so-called right to procreate

By Jessie Hill

My seminar papers seem to be giving me much fodder for thought this year. I posted earlier about mandatory cesarean sections, insipired by one student's paper topic.

Another student of mine has written a very interesting paper about restrictions on surrogacy that considers the scope of gay men's constitutional right to procreate (if any). Of course, this right to procreate was established way back in Skinner v. Oklahoma (1942), and it seems almost beyond question that it has continuing vitality, at least as long as the inverse - the right not to procreate - continues to exist.

One of the interesting topics that came up in recurring conversations while I was supervising this student's paper, however, was what exactly this so-called right to procreate really means. I have always found the meaning of the word "procreate" to be eternally shifting and slippery, at least in the ways it is used in most constitutional contexts. Do we even have a working definition of procreation (for constitutional purposes)? Does it the right to procreate mean a right to propagate one's genetic material without interference from the government? Is it just a right to use your naturally-given biological equipment in such a manner that offspring may result, if you are so inclined? I am sure it is not generally understood as a positive right to government assistance, but is it broad enough to include a right non-interference with one's access to procedures like IVF? Does it necessarily include some right to custody of one's offspring, since the right would otherwise be meaningless? Or is it that concept foreclosed by Michael H. v. Gerald D.? Any thoughts?

Full post as published by The Faculty Lounge on May 26, 2010 (boomark / email).