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Social Justice, Procreative Liberty, and the Limits of Liberal and the Limits of Liberal Theory: Robertson's Children of Choice
Published online by Cambridge University Press: 27 December 2018
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- Copyright © American Bar Foundation, 1995
References
1 See, e.g., Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); C. B. MacPherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962). For a helpful collection of essays on this debate, see Michael J. Sandel, Liberalism and Its Critics (New York: New York University Press, 1984).Google Scholar
2 See, e.g., Ruth Colker, Abortion and Dialogue (Bloomington: Indiana University Press, 1992); Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989); Robin West, “Jurisprudence and Gender,” 55 U. Chi. L. Rev. 1 (1988). See also Linda C. McClain, “‘Atomistic Man’ Revisited: Liberalism, Connection, and Feminist Jurisprudence,” 65 S. Cal. L. Rev. 1171 (1992) (defending liberalism against the feminist critique); Cynthia V. Ward, “The Radical Feminist Defense of Individualism,” 89 Nw. U.L. Rev. 871,871 (1995) (challenging “the assumed link between the gender hierarchy and the rejection of liberalism”Google Scholar
3 See, e.g., Patricia J. Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991); Neil Gotanda, “A Critique of ‘Our Constitution Is Color-Blind,’” 44 Stan. L. Rev. 1 (1991); Kimberlé Williams Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” 101 Harv. L. Rev. 1331 (1988). These same scholars have nevertheless faulted Critical Legal Studies' critique of liberalism for failing to appreciate the importance of rights to the struggle for racial justice. See, e.g., Anthony E. Cook, “Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr.,” 103 Harv. L. Rev. 985 (1990); Patricia J. Williams, “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,” 22 Harv. C.R.-C.L.L. Rev. 401 (1987).Google Scholar
4 See, e.g., John Rawls, A Theory of Justice (Cambridge: Harvard University Press); Alan Ryan, John Dewey and the High Tide of American Liberalism (New York: W. W. Norton & Co., 1995); Ronald Dworkin, “Why Liberals Should Care about Equality,”in Dworkin, A Matter of Principle 205 (Cambridge: Harvard University Press, 1985). See also Iris Marion Young, Justice and the Politics of Difference 15-38 (Princeton, N.J.: Princeton University Press 1990) (criticizing liberal theories of distributional justice for ignoring the social structure and institutional context that help determine distributive patterns).Google Scholar
5 Robertson contends that his rights-based approach to reproduction does not “ignore the social dimension, even if social claims are seldom sufficient to limit procreative choice” (at 225). The understanding of liberty as a negative right and guarantee of government neutrality, however, makes most social claims irrelevant to Robertson's procreative liberty analysis.Google Scholar
6 For another liberal defense of surrogacy contracts, see Carmel Shalev, Birth Power: The Case for Surrogacy (New Haven, Conn.: Yale University Press, 1989) (advocating a “free market in reproduction” in which the “reproducing woman” operates as an “autonomous moral and economic agent”).Google Scholar
7 For critiques of this position, see Nancy Ehrenreich, “Surrogacy as Resistance? The Misplaced Focus on Choice in the Surrogacy and Abortion Funding Contexts,” 41 DePaul L. Rev. 1369 (1992) (book review); Debra Satz, “Markets in Women's Reproductive Labor,” 21 Philosophy & Pub. Aff. 107 (1992).Google Scholar
8 For arguments contesting the understanding of parenthood and identity based on genetic relatedness, see Elizabeth Bartholet, Family Bonds: Adoption and the Politics of Parenting (Boston: Houghton Mifflin, 1993) (“Bartholet, Family Bonds”); Dorothy E. Roberts, “The Genetic Tie,” 62 U. Chi. L. Rev. 209 (1995).Google Scholar
9 See Margaret Jane Radin, “Market-Inalienability,” 100 Harv. L. Rev. 1849 (1987).CrossRefGoogle Scholar
10 Note how much Robertson's own description of reproduction's importance resembles Radin's: “To deny procreative choice is to deny or impose a crucial self-defining experience, thus denying persons respect and dignity at the most basic level. … Procreative liberty should enjoy presumptive primacy … because control over whether one reproduces or not is central to personal identity, to dignity, and to the meaning of one's life” (at 4, 24). Of course, Radin and Robertson reach very different conclusions about the implications of reproduction's importance.Google Scholar
11 Robertson notes that nontherapeutic genetic enhancements would nevertheless be protected as part of parental discretion in rearing offspring. It is less clear whether this core view of reproduction would encompass the procreative interests of posthumous reproducers, gamete donors who do not intend to rear the offspring, and single individuals who intend to rear their offspring on their own.Google Scholar
12 Why, for example, is it any less critical to a deaf parent's personal identity and meaning of life to have a deaf child than for a nondeaf parent to have a nondeaf or even a genetically related child? Just as having healthy offspring is essential to most people's reproductive choice, having children with traits considered abnormal may be essential to others' decision to procreate.Google Scholar
13 See Satz, 21 Philosophy & Pub. Aff. Google Scholar
14 I elaborate this argument in Dorothy E. Roberts, “Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy,” 104 Harv. L. Rev. 1419 (1991).CrossRefGoogle Scholar
15 See Bartholet, Family Bonds (criticizing how society makes adoption the last resort for infertile couples who want children); Nadine Taub, “Surrogacy: A Preferred Treatment for Infertility?” 16 Law, Med. & Health Care 89 (1988) (suggesting that reproductive research should shift its focus to the causes of infertility).CrossRefGoogle Scholar
16 For a more extended critique of the way assisted reproduction has supported patriarchal and racist family norms, see Roberts, 62 U. Chi. L. Rev. Google Scholar
17 Martha A. Field, Surrogate Motherhood 51 (Cambridge: Harvard University Press, 1988) (“Field, Surrogate Motherhood”). In the typical contract pregnancy arrangement, both the contracting husband and the surrogate mother are genetically related to the child, while the contracting wife is not. Gestational surrogates, on the other hand, may facilitate a genetic tie between the child and kith the contracting husband and wife. In either case, the surrogate's biological connection to the child is devalued.Google Scholar
18 The denial of sperm donors' parental rights does not contradict the law's protection of the patriarchal family. Far from disrupting the family by creating an “illegitimate” child, sanctioned artificial insemination completes the traditional nuclear family by providing a married couple with a child. Carol Smart, “‘There is of course the distinction dictated by nature’: Law and the Problem of Paternity,”in Michelle Stanworth, ed., Reproductive Technologies: Gender, Motherhood and Medicine 98, 100 (Minneapolis: University of Minnesota Press, 1987). Courts have been willing to grant parental rights to sperm donors “when no other man is playing the role of father for the child,” such as when the mother is a lesbian or unmarried, and granting these rights, therefore, would not interfere with a nuclear family. Field, Surrogate Motherhood 116.Google Scholar
19 For a reconception of autonomy that builds in the individual's social context, see Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts and Possibilities,” 1 Yale J.L. & Feminism 7 (1989).Google Scholar