Reproductive Liberty Research Articles

Disrupting the Reproductive Lives of Japanese American Families During Wartime: The Overlapping Histories of Removal, Incarceration, and Eugenic Sterilization, 1942–1946

The World War II mass incarceration of 120,000 Japanese Americans disrupted families, enacted intergenerational trauma, and characterized Japanese Americans as inherent racial threats. This federal exercise in biopolitical management intersected with state-sponsored eugenic sterilization in California institutions. Linking War Relocation Authority and California Department of Institutions records, we document 32 Japanese American sterilization survivors during the wartime incarceration period (1942–1946). We show how federal and state authority converged to deprive Japanese Americans of civil rights and reproductive liberty. We add original research and analysis to the intertwined histories of Japanese American incarceration, eugenics, and family in the United States.

What You're Rejecting When You're Expecting.

I defend two collapsing or reductionist arguments against weak pro-natalism (WPN), the view that procreation is generally merely permissible. In particular, I argue that WPN collapses into strong pro-natalism (SPN), the view that procreation is generally obligatory. Because SPN conflicts with the dominant view that procreation is never obligatory, demonstrating that WPN collapses into or entails SPN establishes epistemic parity (at least as concerns reproductive liberty) between WPN and anti-natalism (AN), the view that procreation is always impermissible. First, I distinguish between two moral goods: the good of procreation itself and the good of procreative potential. Second, I contend that the average moral agent is obligated to assist needy children via adoption, fostering, or other financial or interpersonal support. Third, I present the first collapsing argument: if an agent's justification for not assisting needy children is preservation of their resources (financial or interpersonal) for their actual future offspring, that justification is preserved only if they eventually and actually procreate. Thus, their eventual procreation is morally obligatory and SPN follows. Fourth, I present the second collapsing argument, which assumes procreative potential as the relevant good: if an agent's justification for not assisting needy children is preservation of their resources for their potential future offspring, that justification holds only if (a) the objective or subjective valuation of the opportunity is of the relevant type and valence to justify not assisting needy children and (b) the agent sincerely values the opportunity. Fifth, I argue that (a) is unsatisfied and that while (b) is satisfied in most cases, it entails that most agents are obligated to desire or be behaviourally disposed to pursue procreation for themselves (i.e., SPN). Thus, I conclude that both actual procreation and procreative potential are either insufficient justifications for not assisting needy children or that they entail obligatory pro-reproductive attitudes or behaviours.

To Mars and Beyond: Engineering Life as a Moral Duty

To Mars and Beyond: Engineering Life as a Moral Duty

Testing Embryos for IQ

In 2018, an American biotechnology company developed a test that could identify if an embryo created through in-vitro fertilisation would become a person with a low intelligence quotient. As the same approach could be used to predict if an embryo will become a person with an above average intelligence quotient, such tests raise questions about reproductive choice and what sort of children prospective parents should have the freedom to create through assisted reproductive technology. Much of the literature on the ethics of selecting for non-disease characteristics was published prior to the development of any test for such characteristics. This article reviews and applies these arguments in the context of the Australian regulatory framework and the technology that is currently available: a test for intelligence quotient. It examines the concept of reproductive liberty and how this concept should be balanced against the welfare of the future child. The article also considers reasons extraneous to the future child’s welfare and asks if any such reasons are good enough to restrict the reproductive liberty of prospective parents.

Reproductive Originalism: Why the Fourteenth Amendment's Original Meaning Protects the Right to Abortion

The conventional wisdom among conservative originalists is that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are abominable rulings unmoored from the text and history of the Constitution. In the eyes of conservative originalists, the Supreme Court created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. These so-called originalists are deeply misguided. As this Essay shows, the text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, to marry and have a family, and to reproductive liberty. The right to abortion flows logically from these fundamental rights that the Fourteenth Amendment was written to protect. The Supreme Court should recognize these Fourteenth Amendment first principles when it decides this Term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning abortions after fifteen weeks of pregnancy. This Essay makes two central claims. First, it shows that the original meaning of the Fourteenth Amendment broadly protects fundamental rights, including rights not specifically mentioned elsewhere in the four corners of the Constitution’s text. Against the backdrop of the horrors of slavery, the Fourteenth Amendment drew on the Declaration of Independence’s promise of inalienable rights and the Ninth Amendment’s affirmation of individual rights not specifically enumerated in the text to safeguard the protection of basic personal rights inherent in liberty. Accordingly, the fact that the Constitution does not explicitly list abortion as a protected right is irrelevant.

Non-Invasive Prenatal Testing for “Non-Medical” Traits: Ensuring Consistency in Ethical Decision-Making

The scope of noninvasive prenatal testing (NIPT) could expand in the future to include detailed analysis of the fetal genome. This will allow for the testing for virtually any trait with a genetic contribution, including “non-medical” traits. Here we discuss the potential use of NIPT for these traits. We outline a scenario which highlights possible inconsistencies with ethical decision-making. We then discuss the case against permitting these uses. The objections include practical problems; increasing inequities; increasing the burden of choice; negative impacts on the child, family, and society; and issues with implementation. We then outline the case for permitting the use of NIPT for these traits. These include arguments for reproductive liberty and autonomy; questioning the labeling of traits as “non-medical”; and the principle of procreative beneficence. This summary of the case for and against can serve as a basis for the development of a consistent and coherent ethical framework.

New York State Creates New Governance of Commercial Gestational Surrogacy

United States law recognizes adult reproductive liberty and many states view surrogacy services through that lens. During the COVID-19 pandemic in March, 2020, New York State enacted the Child–Parent Surrogacy Act (CPSA) into law, after feminists and their allies had caused its defeat in 2019. Just before approval of the CPSA, a group of legislators introduced the Alternative Surrogacy Bill (ASB). This article is a case study that examines how the CPSA and not the ASB became law, examining surrogate rights, the best interests of the child, and the ethical issues related to adult donor-conceived and surrogacy born children’s rights to information about their ancestry.

Reframing Reproductive Rights on a Transnational Scene

Despite its strong affirmation on the international scene, reproductive liberty has not been very successful in realising reproductive rights under European human rights law. The aim of this article is to examine two possible argumentative avenues for reframing reproductive rights, the market and the health frameworks. The authors argue that those approaches to reproductive issues enrich reproductive rights and should be better considered by the European Court of Human Rights in order to frame a European concept of reproductive rights.

Parental Reproductive Liberty for Choosing the Sex of Their Offspring: an Analysis of the Positions in Muslim Law and Christianity

Technological developments in the domain of fertility treatment in spite of thier utilitarian uses come with a plethora of ethico-religious challenges for people of faith particularly if they contradict some of their core religious values and beliefs about human procreation. The most disruptive among such challenges is declaring parental choice of a specific gender to their future offspring as part of their reproductive liberty (right). As to how major semitic religions, such as Christionaity and Islam respond to it, the answer is polemical. Christianity genrally objects to it mainly because it turns procreation into a manufacturing business instead of leaving the sex of a baby to God. The Islamic position, on the other hand, is less rigid as the majority of Sunni Muslim legists, without much reflections on its ethical dilemmas, approve it not only for medical reason but also family balancing while dissenting views among them consider it a direct affront on what God has declard to be His domain of perfection of human procreation. This paper, therefore, argues that defining parents` decision on sexing a “right” or “liberty” is difficult to maintain unless a far-fetched perspective of scriptural texts is adopted.

Regulating Preimplantation Genetic Testing across the World: A Comparison of International Policy and Ethical Perspectives

Preimplantation genetic testing (PGT) is a reproductive technology that, in the course of in vitro fertilization (IVF), allows prospective parents to select their future offspring based on genetic characteristics. PGT could be seen as an exercise of reproductive liberty, thus potentially raising significant socioethical and legal controversy. In this review, we examine-from a comparative perspective-variations in policy approaches to the regulation of PGT. We draw on a sample of 19 countries (Australia, Austria, Belgium, Brazil, Canada, China, France, Germany, India, Israel, Italy, Japan, Mexico, Netherlands, Singapore, South Korea, Switzerland, United Kingdom, and the United States) to provide a global landscape of the spectrum of policy and legislative approaches (e.g., restrictive to permissive, public vs. private models). We also explore central socioethical and policy issues and contentious applications, including permissibility criteria (e.g., medical necessity), nonmedical sex selection, and reproductive tourism. Finally, we further outline genetic counseling requirements across policy approaches.

Parental Reproductive Liberty for Choosing the Sex of Their Offspring: an Analysis of the Positions in Muslim Law and Christianity

On 1 April 1974 New Zealand's no-fault accident compensation scheme commenced. Since then doctors in New Zealand have been protected from civil claims for damages which arise directly or indirectly from medical misadventure. During this period disciplinary complaints against doctors have risen substantially but there is no empirical evidence that New Zealand's no-fault accident compensation scheme has adversely affected the regulation of medical practice in that country.

Pushing the boundaries: Uterine transplantation and the limits of reproductive autonomy.

Over the course of recent years, various scientific advances in the realm of reproduction have changed the reproductive landscape, enhancing women’s procreative rights and the choices available to them. Uterus transplants (UTx) are the latest of such medical innovations aimed at restoring fertility in women suffering from absolute uterine factor infertility, providing them with the possibility not only of conceiving a genetically related child but also of gestating their own pregnancies. This paper critically examines the primacy of reproductive liberty in the context of uterus transplantation. It questions whether and to what extent we should respect the reproductive autonomy of a woman who chooses UTx, given the significant risks that attach to the procedure and existing concerns that UTx may perpetuate potentially troubling gendered norms surrounding pregnancy and the role of women’s bodies in reproduction, which may place undue reproductive pressures on women.

A clash at the petri dish: transferring embryos with known genetic anomalies.

Advancing technologies in genetic testing of preimplantation embryos enable IVF patients to access detailed information about their future child's health status, facilitating and complicating their reproductive decision-making. Testing for embryonic genetic anomalies linked to future health has grown increasingly sophisticated. A patient's decision to seek transfer of a health-affected embryo may or may not be compatible with her physician's professional conscience, potentially resulting in a clash at the petri dish. This article sets out arguments in support of physician decisions to assist or decline to assist in the transfer of anomalous embryos upon patient request. Arguments in support of transfer include the preeminence of a patient's reproductive liberty, the value of equal protection as applied to pre- and post-implantation embryos, the allocation of dispositional authority over embryos, and the frailties of predicting a child's future health experience. Arguments that bolster a provider's decision to decline requests for transfer include the role of physician autonomy in the doctor-patient relationship, the theories of reproductive non-maleficence and procreative beneficence, and legitimate concerns over future legal liability. Regardless of a clinic's ultimate position, this article advocates that providers create or adopt detailed policies setting forth their preferences and practices regarding anomalous embryo transfer.

Legal Briefing: Unwanted Cesareans and Obstetric Violence

A capacitated pregnant woman has a nearly unqualified right to refuse a cesarean section. Her right to say "no" takes precedence over clinicians' preferences and even over clinicians' concerns about fetal health. Leading medical societies, human rights organizations, and appellate courts have all endorsed this principle. Nevertheless, clinicians continue to limit reproductive liberty by forcing and coercing women to have unwanted cesareans. This "Legal Briefing" reviews recent court cases involving this type of obstetric violence. I have organized these court cases into the following six categories: 1. Epidemic of Unwanted Cesareans 2. Court-Ordered Cesareans 3. Physician-Coerced Cesareans 4. Physician-Ordered Cesareans 5. Cesareans for Incapacitated Patients 6. Cesareans for Patients in a Vegetative State or Who Are Brain Dead.

Disability and the meaning of reproductive liberty

ABSTRACTThis article brings together three literatures: political theories of liberty, feminist theories on reproductive rights, and the disability studies literature on ableism. I engage with these debates to consider the meaning of a core political concept – liberty – by examining women with disabilities’ reproductive experiences and interests. In light of the dynamics of gender inequality and ableism, I seek to problematize the notion that reproductive freedom is synonymous with the negative right to privacy. Although governmental noninterference has allowed many women to gain control of their bodies and reproductive fates, the narrow focus on privacy – and the attendant issues of contraception and abortion – overlooks important dimensions of reproduction that are more likely to affect women with disabilities, including the structural factors that discourage disabled women from having children at all. The article concludes that feminist theorists should embrace a conception of positive liberty committed to actively dismantling ableist barriers to motherhood, including: inadequate access to assisted reproductive technologies; a lack of financial support for social welfare programs; and discriminatory attitudes that assume that disabled women are not “mother material.” Until these structural obstacles to “choice” are eradicated, genuine reproductive liberty will remain an elusive goal for many women with disabilities.

Provision of fertility services for women at increased risk of complications during fertility treatment or pregnancy: an Ethics Committee opinion.

This opinion addresses the ethics of providing fertility treatment to women at elevated risk from fertility treatment or pregnancy. Providers ethically may treat women at elevated risk provided that they are carefully assessed; that specialists in their medical condition are consulted as appropriate; and that patients are fully informed about risks, benefits, and alternatives, including oocyte and embryo donation, use of a gestational surrogate, not undergoing fertility care, and adoption. Providers also may conclude that the risks are too high for them to treat particular patients ethically; such determinations must be made in a medically objective and unbiased manner and patients must be fully informed of the decision. Counseling of women who wish to initiate fertility treatment with underlying medical conditions that confer increased risk during treatment or pregnancy should incorporate the most current knowledge available, being cognizant of the woman's personal determinants in relation to her reproductive desires. In such a way, both physician and patient will optimize decision making in an ethically sound, patient-supportive context.

Reproductive Selection Bias

Decades after the advent of assisted reproductive technology (ART) that allows prospective parents to deselect embryos with grave genetic illnesses – a procedure called preimplantation genetic diagnosis (PGD) – it remains a tool largely of upper class whites. In the wake of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, I argue that the time has come to focus on access in this area of reproductive rights. The next logical step is to rebut the presumption that reproductive liberty is only a negative right that prevents government interference with decisions about whether and how to procreate or not to procreate. If liberty is tied to equality through access to medical procedures, scholars must finally answer the question of what equality requires in a system that permits the use of ARTs and frame reproductive liberty as a positive right. This Article shows how the current system of assisted reproduction already distinguishes between the “in” group and the “out” group. I use PGD here as a lens to focus on ARTs more generally. Section I explores the literature’s focus on the use and growth of PGD for genetic selection unrelated to the prevention of genetic disease (nontherapeutic PGD), including the use of PGD for sex and other physical trait selection. The scholarly overemphasis on the tricky moral quandaries associated with the nontherapeutic use of PGD where liberty concerns are at the forefront impedes any proposed solutions to unequal access to using PGD to prevent inherited illnesses. Section II explores how existing jurisprudence ignores the role of income inequality and broader social concerns in deciding disputes related to PGD. Finally, I discuss in Section III how the combined effect of the Affordable Care Act (ACA) antidiscrimination and essential health benefit mandates is to focus on ensuring equality of access to healthcare, particularly for underserved populations. Reproductive technology should be included among the essential health benefits the ACA requires, and the illustration of therapeutic PGD demonstrates why. The new eugenics privileges wealthy whites above other races and classes, and exacerbates race and class distinctions.

Commentary on Geduldig v. Aiello

This chapter of FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT (Linda Berger, Bridget Crawford & Kathy Stanchi, eds. 2016) provides commentary on Lucinda Finley’s rewritten majority opinion in Geduldig v. Aiello, 417 U.S. 484 (1974). This commentary chapter complements the rewritten opinion, providing background material, analysis of the feminist judgment, and reflections on the implications of the feminist judgment for what the law of sex equality could have been. In Geduldig, the United States Supreme Court infamously held that pregnancy discrimination is not sex discrimination under the Equal Protection Clause of the Fourteenth Amendment. The Geduldig decision upheld a California state disability insurance program that denied benefits for pregnancy-related disability, while granting benefits for virtually every other disabling event ranging from prostatectomies to cosmetic surgery. Despite sustained criticism, the Geduldig decision has never been explicitly overruled and continues to constrain women’s access to substantive equality and reproductive liberty. Lucinda Finley’s feminist judgment responds to the faulty formalist logic of the original opinion in several important, distinctively feminist ways. Finley’s feminist judgment reaches beyond the formal appearance of justice and seeks substantive fairness for women in the public sphere. The landscape of sex equality law would look dramatically different if the Court had adopted Lucinda Finley’s feminist judgment—a tantalizing possibility since the intellectual foundations for this feminist judgment existed at the time.

The Catholic Bishops vs. the Contraceptive Mandate

The Roman Catholic bishops of the United States have publicly opposed artificial contraception since they first issued a public statement condemning it in 1919. Thereafter, the bishops were generally unsuccessful in persuading the public that contraceptive access should be restricted. Recently, however, the bishops succeeded in a campaign to restrict access to contraceptives for Catholic and non-Catholic women alike. Their lobbying and public criticism of the contraceptive mandate of the Affordable Care Act (ACA), which requires employer health plans to offer preventive reproductive care coverage, forced Obama administration officials into a series of accommodations that gutted portions of the law intended to provide contraception to employees without copayment or cost sharing. In contrast to their earlier efforts to restrict reproductive freedom, the bishops successfully characterized their efforts against the ACA as a battle for religious freedom rather than against reproductive rights. This successful strategy may lead to future setbacks for women’s reproductive liberty.

Genetic Transmission of Disease: A Legal Harm?

This paper considers whether existing law could potentially be used to criminalize the transmission of genetic disease. The paper argues that even if an offence could be made out, the criminal law should not be involved in this context for many reasons, including the need to protect reproductive liberty and pregnant women's rights. The paper also examines whether there might be scope for civil claims between reproductive partners for a 'failure to warn' of potential genetic harm and argues there are strong policy grounds for resisting such claims. If such a duty were to exist, there might, in the future, be scope for a child to bring a claim under the Congenital Disabilities (Civil Liability Act) 1976. Such a claim could be for the failure by the child's father to warn her mother, which in turn led to the loss of opportunity to have treatment in utero which could have prevented the disability. It is suggested that the same arguments which supported granting maternal immunity under the Act would also support paternal immunity and that, therefore the issue of the lack of paternal immunity under the Act should be revisited.