February 27, 2024

That “pernicious” notion of the “best interests of the child”

I. Glenn Cohen, of Harvard Law School, argues that this universally accepted idea must be repudiated.

Article 3 of the United Nations Convention on the Rights of the Child states what everyone considers to be a self-evident truth: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Well, almost everyone.

I. Glenn Cohen, a bioethicist at Harvard Law School, believes that “the best interests of the child” is not a concept which is applicable to assisted reproductive technology (ART). In a series of recent papers in leading law journals, he argues that an idea which works well for existing children leads to “vacuous”, “problematic” and “pernicious” conclusions when applied to children who do not exist.

The “best interests of the resulting child” (Cohen abbreviates this as BIRC) are often used to discourage or even to bar progress in ART. Should women in their 60s be allowed to bear children? Should anonymous sperm donation be lawful? Should brother-sister incest be permitted? Negative responses in all these cases invoke the best interests of children which would result. But Cohen disagrees:

“Unless the State’s failure to intervene would foist upon the child a ‘life not worth living,’ any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist.”

Why is the doctrine of BRIC so common? Cohen suggests that it is a terrible idea which veils discriminatory and judgemental reasoning. ”It is a way of talking about the regulation of reproduction that avoids confrontation with justificatory idioms that are disturbing, controversial, and illiberal”. He believes that the regulation of reproduction is fundamentally flawed and must be radically reformed:

“It is hard to exaggerate the importance of this project: if it succeeds, I will have shown that the prevailing justifications offered for the regulation of reproduction, and most of the regulations they seek to justify, are either intellectually bankrupt or carry with them disturbing and problematic implications such that they are better off discarded… much of the existing law in this area cannot be justified.”

Cohen was just granted tenure at Harvard Law School. He is young, energetic, appealing and brilliant. His subtle and qualified support of issues like eugenics, anonymous sperm donation, commercial surrogacy is certain to have an impact on public debate. Watch this space. 

Michael Cook
Creative commons
assisted reproduction
best interests of the child
I. Glenn Cohen