August 12, 2022

Is there a right not to procreate?

What about dead sons and fiances?
The question of harvesting sperm from recently-deceased sons
and fiances pops
up in the news from time to time. The courts seem easily persuaded that the dead
man would have wanted to father children after his death on the word of the
prospective mother – or grandmother. But what does the future hold in this
shadow world of reproductive rights? Does a man have a right to refuse to allow
his sperm to be used to procreate after he has shuffled off this mortal coil? I.
Glenn Cohen, of Harvard Law School, argues in the Stanford Law
Review
that the US Constitution does not protect a right not to
procreate.

Cohen’s reasoning also covers frozen embryos which have been stored and
become the subject of disputes between the partners over whether they should be
thawed and transferred to a womb. He distinguishes between the right not
to be a genetic parent, the right not to be a legal parent, and the right
not to be a gestational parent. The constitution clearly protects the
right not to be a gestational parent – a woman cannot be forced to bear a child.
However, he says, the right not to be a genetic parent cannot be guaranteed. "I
see nothing to suggest that as a constitutional matter an individual
should be unable to waive an alleged constitutional right not to be a genetic
parent the way she [or he] can waive many of her [or his] other rights."