“Basic Civil Rights”

Abstract

Abstract In the 1942 case of Skinner v. Oklahoma, the U.S. Supreme Court called “procreation” one of “the basic civil rights of man.” But this lofty rhetoric carries no binding authority as legal precedent, and it came when there was just one way to make a baby. More recent developments in medicine and technology separate sex from conception; biology from brute luck; and genetics from gestation or childrearing. Birth control, surrogacy, sperm banking, egg freezing, and embryo selection don’t just enhance control over whether, when, and how to reproduce—they reveal distinct interests in choosing pregnancy (gestating a fetus), parenthood (raising a child), and particulars (selecting offspring traits). The American legal system doesn’t recognize any general right to make decisions about having children, not aside from narrow limits against severe government restrictions on access to abortion and birth control. Procreation deserves greater protection because it goes to the heart of autonomy, well-being, and equality—these vital human goods give distinct reasons to care that individuals be able to choose whether, when, and how to reproduce. The greatest value of family planning has less to do with choices than consequences—consequences that lay identities, experiences, and opportunities on the line. Few other decisions or undertakings over the course of a lifetime so shape who a person is, how he spends his days, and how he wants to be remembered. Reproductive negligence can also erode social equality as surely as limiting access to those services and procedures in the first place.