Children of Choice: Freedom and the New Reproductive Technologies.

Powerful new technologies are changing the way we reproduce, and the way we think about procreation, parenthood, family, and children. Certain practices, such as surrogate motherhood, and techniques, such as cloning, genetic screening, or manipulation of embryos, are especially controversial. Some of the assisted reproductive technologies (ARTs), such as in vitro fertilization (IVF), have become relatively commonplace and are viewed by many as acceptable treatments for infertility, despite uncompromising opposition from the Catholic Church, and some feminists. Even people who are not opposed in principle to assisted reproduction worry about issues such as access, the dangers of commercialization, and the confusion of genetic lineage. Standard questions about the safety and effectiveness of treatments, as well as about the informed consent of patients, continue to be raised, particularly in light of revelations of abuses at U.C. Irvine's fertility clinic. These revelations have sparked calls for increased control over a largely unregulated industry.

May the use of ARTs be restricted or even banned by the state? Is their use sometimes or always immoral? John Robertson's Children of Choice attempts to create a framework for resolving the controversies created by reproductive technology. That framework is based on the dominant value of procreative liberty or choice. Procreative liberty has this value because "whether one reproduces or not is central to personal identity, to dignity, and to the meaning of one's life."' A corollary to this principle is that procreative decisions should be left to the individuals whose procreative desires are most directly involved [235].

This does not mean that procreative decisions can never be restricted, still less that all such decisions are morally irreproachable. No right is absolute, including the right to reproduce (or not to reproduce). Even fundamental constitutional rights can be limited, though only for "compelling" reasons, that is, when reproduction would "clearly harm the tangible interests of others" [221]. Robertson proposes a two-step procedure for determining when reproductive rights may be limited. First, it must be determined whether a "distinctively procreative interest" is involved. If so, the question is whether the harm threatened by reproduction (or nonreproduction) is sufficient to override procreative choice [30].

Essential to the book's project of advocating the protection of procreative liberty is an analysis of its nature and scope. For obviously it is possible to protect and privilege procreative liberty only if we are clear about what it encompasses. To this end, Robertson distinguishes two kinds of procreative liberty: the freedom to have, and the freedom to avoid having, children. He furthers distinguishes the genetic and gestational components of reproduction. In the strict sense, reproduction is always genetic. "It occurs by provision of one's gametes to a new person, and thus includes having or producing offspring" [22]. However, IVF allows a woman who has no genetic relation to a fetus to gestate it. Although, strictly speaking, she has not reproduced, Robertson considers her to have had a reproductive experience, since gestation is such an important part of reproduction. Reproduction in either the genetic or gestational sense is distinguished from child rearing, which may be the reason for valuing procreation, but is not essential to having a procreative interest.

The right to avoid reproduction has been recognized in a series of Supreme Court decisions, beginning with the landmark case of Griswold v. Connecticut. By contrast, there is little explicit law concerning the right to reproduce, although such a right is often referred to by judges in "dicta" (that is, remarks that go beyond the determination of a case and are not legally binding). The right to reproduce or to avoid reproduction is also an "important moral right" which cannot be limited "except for very good reason" and is respected "because of the centrality of reproduction to personal identity, meaning, and dignity" [30].

Having stated the nature and value of procreative liberty, Robertson's next task is to determine its scope. For example, is the right to reproduce limited to those who are able to reproduce "naturally" via coitus? Or is there a right of infertile people to access to ARTs? Is there a right to engage in collaborative reproduction, such as surrogacy? Does procreative liberty include the right to choose the characteristics of one's offspring, for example, by genetic engineering? Finally, is procreative liberty limited to reproduction, or does it include the right to use one's reproductive capacity for nonreproductive purposes, such as donating gametes or embryos for research?

These intriguing questions take us beyond the "core values" or "core meanings" of procreative liberty. The core value of the right to avoid reproduction is the right to use contraception and abortion, while the core value of the right to reproduce is a right to marry and found a family. These core values are clearly and strongly protected in our legal system. However, there are procreative interests beyond the core, interests we might characterize as "penumbral." Whether these penumbral interests are protected as part of procreative liberty depends, for Robertson, on how closely they are related to the core meanings and values.

For example, we may ask whether "reproduction tout court" (that is, without rearing) is a fundamental constitutional right. If so, then it would appear that individuals have a constitutional right, for example, to act as surrogates. No court has so far interpreted procreative liberty this way, and some commentators find the very idea absurd.(2) Nor has any court held, as Robertson does, that enforcement of surrogate contracts is required by procreative liberty. Five states (Arizona, Indiana, Michigan, New York, and Utah) have made all surrogate contracts void and unenforceable, while three (Louisiana, Nebraska, and Washington) have outlawed commercial surrogacy. Most states that have legislated on surrogate motherhood protect the surrogate's right to retain rearing rights [132]. However, Robertson holds that, "Under the theory of procreative liberty proposed in this book, individuals have the right to hire or engage donors and surrogates, or to serve as donors and surrogates themselves" [227]. Whatever our qualms about commercial surrogacy, "it may have to be tolerated because the procreative liberty of all the parties is so intimately involved" [227].

Of course, the mere fact that most courts and legislatures disagree with Robertson's radical interpretation of procreative liberty is no argument against it. Their understanding of procreative liberty may be too conservative or insufficiently grounded. The philosophical question, then, is, how persuasive are Robertson's arguments for his strong and expansive interpretation of procreative liberty? In what follows I will argue that Robertson provides an inadequate analysis of procreative liberty which, because it severs reproduction from rearing, fails to account for its moral importance. It is not genetic replication that deserves to be an important moral and fundamental legal right. Rather, reproduction has this status because of its connection with rearing. This has implications both for the scope of procreative liberty (that is, who has the right), and for the responsibilities of those who would procreate.

There are many things to praise about Children of Choice. In its scope, knowledgeable treatment of the issues, and philosophical acuity, it contributes significantly to the literature on reproductive ethics. Indeed, it is the most important book on reproductive choice to date, and one that is required reading for philosophers, lawyers, ethicists, and anyone else interested in the legal and ethical aspects of procreation.

I have one quibble with a statement about the safety of Norplant. Robertson says that since Norplant "is estrogen-free, it can be used safely in women who are hypertensive or diabetic, who have migraine headaches, or who are over forty years old and smoke" [70]. This information appears to conflict with the "Sample Norplant Protocol," provided by Planned Parenthood, which says that if a woman has migraine headaches, consultation with a physician is advised, as using Norplant may increase medical risks. Equally dubious is the claim that Norplant is safe for women with high blood pressure or diabetes. According to Stacey Arthur, medical authorities concur that the device is not advisable for women with diabetes or high blood pressure.(3) Thus, a blanket statement about the safety of Norplant for hypertensive and diabetic women, with no supporting citation given, seems unwarranted.

Robertson is at his best when he argues that noncoital reproduction should be given the same protection as coital reproduction. "Because the values and interests that undergird the right of coital reproduction clearly exist with the coitally infertile, their actions to form a family also deserve respect" [39]. To those who argue that there is no legal right to reproduce if one lacks the physical ability to do so, Robertson offers the analogy of the First Amendment rights of a blind person. The fact that a blind person cannot read visually would not bar the person from using braille, recordings, or a sighted reader. "Similarly, if bearing, begetting, or parenting children is protected as part of personal privacy or liberty, those experiences should be protected whether they are achieved coitally or noncoitally" [39].(4)

Equally persuasive is Robertson's response to those who oppose prenatal diagnosis and abortion for fetal indications on the ground that this devalues the lives of people with handicaps:

Freedom to abort a normal pregnancy implies an equal freedom to abort to avoid the special burdens of having a handicapped child. This practice need no more devalue the life of handicapped persons than carrier screening to avoid their birth does, or than aborting a normal fetus devalues children generally.... As long as the termination occurs at a stage at which the fetus itself has no interests, such terminations would violate no moral duty to the fetus, and thus be within the moral rights of the woman who does not wish to continue such a pregnancy. [159]

Yet despite my agreement with much of what Robertson says, and my admiration for his consistency and rigor, I think that there are both conceptual and substantive problems with his view of procreative liberty. First, procreative liberty is alleged to be a moral, as well as a legal, right. Yet there is little, if any, direct analysis of what it is for something to be a moral right, or how we know what moral rights there are, or how we determine the scope of moral rights. Since Robertson is a law professor, rather than a philosopher, perhaps it is unreasonable to expect him to provide a detailed analysis of the nature of moral rights. Yet such an analysis is important to a satisfactory discussion of procreative liberty. At least, more work remains to be done.

A substantive issue is whether Robertson thinks that the "core values" or "core meanings" of procreative liberty which justify its status as a dominant moral and legal right are to be given a subjective, objective, or intersubjective interpretation. In most places, it appears to be the personal meanings that reproduction has for individuals that both justify the existence of a right to procreate and determine its scope. That is, procreative liberty is a dominant value because procreation is fundamental to a person's identity and sense of meaning in life, and the scope of procreative choice is determined by the personal meaning that such choice has for a particular individual. This is suggested in Robertson's presentation of the case for thinking that the selection of offspring characteristics, for example, through genetic engineering, is an aspect of the right to procreate. He writes:

As noted in chapter 2, there is a presumptive right to procreate because of the great importance to individuals of having biologic offspring--personal meaning in one's life, connection with future generations, and the pleasures of child rearing. If a person thought that she would realize those benefits only from a child with particular characteristics, then she should be free to select offspring to have those preferred traits. The right to procreate would thus imply the right to take actions to assure that offspring have the characteristics that make procreation desirable or meaningful for that individual. [152-53]

The idea that individuals have a moral right to take steps to get a child with certain desired traits, where these are not related to the child's own well-being, will strike many people as implausible, even offensive. It is a gigantic leap from saying that prospective parents ought to be able to use medical technology to prevent the birth of a child with a serious genetic defect or disease to claiming that individuals have a fundamental right to use technology to design offspring to their specifications. Genetic screening and abortion for fetal indications can be justified in two ways. First, the prospective parents may reasonably feel that it is unfair to the child to bring it into the world with severe genetic defects or diseases. This will be especially so if the condition is incompatible with life beyond a few months, or the child's existence will be filled with pain or empty of all of the things that make life a good.(5) Second, abortion may be necessary to avoid imposing on the pregnant woman or couple serious physical, emotional, or financial burdens.(6) Raising a child when one is not ready to be a parent may be a burden, and so may be raising a severely handicapped child. For this reason, many people opt for genetic screening so that they can terminate the pregnancy if the fetus is affected and try again for a healthy child. Abortion for fetal indications is usually regarded as one of the stronger reasons for abortion.(7) It does not follow that it is equally morally permissible to use genetic screening or engineering to create children "to specification." The notion of "designer children" is inconsistent with a commonly shared ideal of parenting, according to which parents are supposed to love and accept their children for who they are, not for their possession of certain traits or talents.

It may be that Robertson would accept this deal, but still maintain that individuals have, and should have, a legal right to use genetic engineering to select desired traits, just as they have, and should have, the legal right to terminate a pregnancy, prior to viability, for any reason, even morally dubious ones. However, given the characterization of procreative liberty as a legal and a moral right, the suggestion seems to be that individuals are morally entitled to select their offspring's traits, if they would be otherwise unwilling to procreate. I regard such an interpretation of procreative liberty as unduly expansive.

Robertson's discussion of "irresponsible reproduction" is equally unsatisfactory, despite a plausible beginning. According to Robertson:

Reproduction always has moral significance because it leads to the birth of another person, whose needs for love, nurturing, and resources have to be met. Clearly, one can act responsibly or irresponsibly in reproducing, because of the impact that one's actions will have on offspring and others, including existing children. [73]

One might think, on reading this, that Robertson takes seriously the idea of irresponsible reproduction and believes that people ought to think very carefully before deciding to procreate about the impact of their choice on the children they will bring into the world. In fact, there is virtually no case of reproduction that Robertson considers irresponsible. Consider a woman who is HIV-positive Would it be irresponsible of her, knowing her diagnosis, deliberately to conceive a child? We may assume that the woman wants very much to have a baby, that this is central to her identity and sense of the meaning of life. But is that all she should consider? I take it that most of us think that responsible reproduction requires that she think about the kind of life her baby will have. AIDS is a terrible and, so far as we know, invariably fatal, disease. Many afflicted children do not survive infancy. Those who do face years of illness before they die. Many are orphaned; some are left languishing in hospitals. Anyone contemplating parenthood should weigh her own desire to love and care for a baby, or to leave something of herself behind, against the possibility of a miserable life for her child. Whether her decision is responsible depends, therefore, on such things as the degree of the risk of transmission, the possibility of therapies to cure or ameliorate the child's condition after birth, and whether she is likely to live long enough to care for her child or whether there are others who can perform this function. The risk of transmission has been estimated at 25 to 35 percent, but it has recently been claimed that giving HIV-positive women AZT during pregnancy reduces the risk to 8percent. Is this degree of risk low enough to allow the woman's desire to reproduce to outweigh the potential for harm to the child? This is a tough and debatable question. However, although Robertson talks about balancing the costs to offspring against the value of the reproductive experience [73], in fact, he does not think that there are any costs to offspring. It does not matter how high the rate of transmission, how sick the kid will be, or how likely it is that he or she will end up as an orphan or "boarder baby" in some hospital. The reason why none of this matters is that, even under the worst circumstances, the child will probably value its own life and prefer to go on living. Thus, its life is not "wrongful." If life is not wrongful, then the child has not been harmed by being brought into existence. And if the child has not been harmed, then reproduction cannot be considered irresponsible (at least as a result of the effect on offspring). As Robertson puts it, "If there is no injury to offspring from their birth alone, then reproduction is not irresponsible solely because children are born in undesirable circumstances" [76]. Unless those "undesirable circumstances" amount to "wrongful life" (something which is extremely rare), it cannot be considered immoral or irresponsible to procreate. Or more precisely, a claim of irresponsibility cannot be based on the impact on offspring. Indeed, Robertson's analysis implies that if an HIV-positive couple were to apply to an infertility clinic for treatment, the clinic would be morally, and perhaps legally, required to treat them. To reject them out of concern for the child they would create would be discriminatory and violative of their procreative liberty.(8)

Wrongful-life is also essential to Robertson's discussion of whether commercial surrogacy should be banned. In making public policy, one would expect legislators and the public to think not only about the desires of infertile couples to have genetically related children, but also about the impact of the practice on the children themselves. For example, we would expect policy makers to ask whether children who were born to women who were paid to relinquish them at birth are at risk of serious psychological problems. This cannot be answered with mere speculation, which Robertson is right to reject, but requires serious empirical research. However, Robertson is not much interested in what such research might reveal. For, as he points out, "But for the technique in question, the child never would have been born. Whatever psychological or social problems arise, they hardly rise to the level of severe handicap or disability that would make the child's very existence a net burden, and hence a wrongful life" [122].

But if "wrongful life" is the criterion for irresponsible reproduction, then it would not be irresponsible for a couple to have a child simply as a source for "spare parts" for an older child. Of course, it would be wrong for parents to neglect or abuse the child. But suppose that the couple does not neglect or abuse "Donor" (as they name him). They just do not feel about him as they do about Junior, for whom Donor's spare kidney, bone marrow, and blood are intended, as necessary. Indeed, they consciously suppress any tender feelings toward Donor since that might inhibit them in using him as a source of organs for Junior, should the need arise.(9) Most of us would regard this situation as paradigmatic of irresponsible, wrongful, and immoral reproduction. If the couple had no intention of loving their child, they should not have had him in the first place. But this would not follow from Robertson's analysis. So long as Donor's life is not so bad that he prefers death, he can have no complaint. If he were to reproach his parents, they would respond, "What's your beef? If we didn't need a source of organs for Junior, you wouldn't be here at all."(10)

Thus, on Robertson's analysis, procreation is never, or hardly ever, irresponsible. Certainly it is not irresponsible for a fourteen-year-old girl to reproduce, despite disadvantages the children of very young mothers experience.(11) For if she waits until she is older, and can give her baby a better start in life, she will give birth to a different child. Thus, the child she would have at fourteen has no other way to be born. Since having a very young mother does not amount to wrongful life, the child is not harmed. If we are to discourage teenage pregnancy, the rationale must be to achieve a better life for the teens themselves or to avoid costs to taxpayers; it cannot be to protect the children.

For the same reason, it would not be irresponsible for an alcoholic deliberately to conceive and risk having a baby with fetal alcohol syndrome (FAS). Robertson does think that it is irresponsible for a woman to drink heavily during pregnancy because FAS is an avoidable harm. That is, the baby could be born healthy if the mother abstains from drinking. However, the reality is that few alcoholics can simply stop drinking. Most require some form of treatment. A sensible recommendation to an alcoholic who wanted children would thus seem to be that she should postpone pregnancy until she completes her treatment, stops drinking, and no longer poses a serious risk of harm to her fetus and future child. But oddly enough, this is just what Robertson cannot say. For if the woman postpones pregnancy until she is no longer drinking, then it will be a different child who gets born. For the child who would have been born if she conceived right away, the choice is having an alcoholic mother or no life at all. As Robertson frequently reminds us, we cannot "protect" children by preventing their births. Better life with FAS than no life at all. So an alcoholic who wants a baby ought to try to stop drinking, but it is not irresponsible for her to become pregnant before she becomes sober.

Robertson's wrongful-life criterion also rules out court-ordered mandated contraception for women who have neglected and abused their children. Being beaten or starved is disadvantageous, but it does not necessarily amount to wrongful life. In any event, Robertson says, ". . . protection of offspring from unfit parenting requires that parents not rear, not that they not reproduce. Offspring could be protected by having others rear them without interfering with parental reproduction" [31].

Whether judges ought to impose contraception as a probation condition (along with psychological counseling and parenting classes) is a complex legal and moral question. In deciding whether judges ought to impose contraception, we need to consider such issues as the limits of judicial discretion in sentencing, whether judges ought to impose powerful medicines with significant side effects on probationers (or whether this amounts to practicing medicine without a license), whether such sentences meet due process requirements, and whether there are alternatives to mandated contraception less subversive of constitutional rights that will deter child abuse.(12) However, these issues do not even arise for Robertson because he does not accept that being born to an abusive parent is, on balance, harmful to the child. Therefore, the state's compelling interest in protecting children is irrelevant. Rather than attempting to reduce the rate of child abuse by preventing the births of children likely to be abused (assuming we can identify such children), we should simply remove children from abusive parents at birth.

But this solution is neither humane, nor one based on a plausible interpretation of procreative freedom. How can permitting a woman to become pregnant and give birth, only to take her child away at birth, be seen as upholding her right to reproduce? As Stacey Arthur writes:

When a prohibition against custody is proffered as a less restrictive alternative to mandatory contraception, isn't one unsavory deprivation of human rights being substituted for another? . . . when an offender's right to reproduce is severed from her rights to care for and rear her children, a precious, multi-faceted human endeavor is reduced to a bare, biological function.(13)

Arthur offers a "more holistic vision of procreation" which is understood as a right to produce one's own children to rear. In this interpretation, the "right to reproduce" is meaningful only when there is an intention, as well as an ability, to assume the role of parent. This could have implications for very young teenagers, the mentally retarded, the mentally ill, those addicted to drugs or alcohol, and so forth.(14) I hasten to add that I am not advocating wholescale sterilization or mandatory contraception of those permanently, much less temporarily, incapable of being rearing parents. Issues of bodily integrity and the right to refuse medical treatment must be considered, as well as the risks of mistake and abuse. However, these reasons against sterilization or mandatory contraception do not rely on an alleged "right to reproduce." A holistic conception of this right, which requires an intention.,and ability to parent, seems to me a more plausible one than Robertson's, in which reproduction tout court apparently is given the status of a fundamental moral and legal right.

Returning to the issue of responsible parenting, it turns out that the only procreation Robertson considers irresponsible, aside from that in which the child's life will be wrongful, is procreation that imposes economic burdens on others. He calls this "mildly irresponsible" although he adds that avoidance of costs is not a compelling justification for limiting reproduction. In other words, it is irresponsible (even though only mildly) for poor people who will love and cherish their children to procreate, but not irresponsible for people to have children who cannot care properly for them, due to alcoholism, drug addiction, psychosis, mental retardation, or an inability to control violent tendencies.

Something is seriously screwy here.

But what exactly is it that is screwy? Is it that Robertson takes a rights-based approach? Some feminists and communitarians identify this as the problem. They view rights talk as absolutist, individualist, and inimical to social responsibility. Robertson presents this criticism with his usual clarity and fairness:

A rights-based perspective tends to view reproduction as an isolated, individual act without effects on others. The determinative consideration is whether an individual thinks that a particular technology will serve his or her personal reproductive goals. Except for the rare case of compelling harm, the effects of reproductive choices on offspring, on women, on family, on society, and on the general tone and fabric of life are treated as irrelevant to moral analysis or public policy. [223]

Robertson responds by saying, "Although powerful and important, however, this critique of rights does not defeat the priority assigned to procreative rights anymore than it defeats the priority of free speech, due process, travel, and other important rights" [223-224]. Quite properly, Robertson points out that rights are often an important protection of individuals from legislative majorities or policymakers. A rights-based approach is women's best protection against restrictions on abortion, or forced sterilization, abortion, or contraception.

The problem with Robertson's analysis is not his rights-based approach, but rather his conception of procreative liberty, which severs reproduction from rearing. This makes the right to reproduce both too narrow and too broad. It is too narrow in that it fails to recognize that taking infants from their mothers is not an alternative to infringing their procreative freedom, but a way of infringing it. It is too broad in that it ascribes fundamental procreative rights to individuals, such as sperm donors and surrogates, who have no intention of using their procreative abilities to rear children, as well as to individuals who lack the capacity to be minimally adequate rearing parents. In addition, Robertson's emphasis on wrongful-life as the criterion for determining when procreation is irresponsible means that we need not worry very much about the lives children are likely to have before bringing them into the world. I consider this to be both irresponsible reproduction and unfair to the children who are the result.

Another problem with focusing virtually exclusively on the reproductive goals of individuals is that these goals themselves may be morally deficient. What if a person has selfish or warped reproductive desires? Imagine a woman who wants to give birth to a handicapped child who will be completely dependent on her because that makes her feel needed and loved. Is she morally entitled to use selective techniques to achieve this goal? Is it imaginable that a doctor could be required to accede to her wishes? If the core values of reproduction are interpreted subjectively, the answer appears to be yes. But the implications of this are too bizarre even for Robertson. He writes:

Yet can we not posit a core view of the goals and values of reproduction such that all actions that affect the decision to reproduce are not protected? On such a view procreative liberty would protect only actions designed to enable a couple to have normal, healthy offspring whom they intend to rear. Actions that aim to produce offspring that are more than normal (enhancement), less than normal (Bladerunner), or replicas of other human genomes (cloning) would not fall within procreative liberty because they deviate too far from the experiences that make reproduction a valued experience. [167, emphasis added]

In other words, when pushed by bizarre examples, Robertson comes up with an intersubjective interpretation of procreative liberty that is more restricted than the interpretation defended elsewhere in the book. In my view, this more restricted interpretation is the more plausible one. Why, after all, should procreation that does not lead to rearing have the importance that makes it a fundamental right? We can recognize that while components of the reproductive process (being a sperm donor or surrogate mother) may have value to individuals, they do not implicate a fundamental right. As Elizabeth Scott expresses it, "It is the objective of rearing the child--of establishing a family--that elevates the right to procreate to a lofty status."(15) Indeed, Robertson's own argument that noncoital and collaborative techniques should be given the same status as coital reproduction is based on the fact that infertile couples wish to produce a child to rear. Thus, I would argue that the intersubjective interpretation of procreative liberty, to which Robertson resorts only in marginal cases (that is, the enhancement, Bladerunner, and cloning scenarios), provides a more plausible conception of procreative liberty and should be employed throughout the book.

NOTES

I would like to thank the editors of CRIMINAL JUSTICE Ethics for insightful and helpful comments on an earlier draft of this essay.

(1) J. Robertson, Children of Choice: Freedom and The New Reproductive Technologies 24 (1994). Subsequent page references in the text will be enclosed in square brackets.

(2) For example, Elizabeth S. Scott, alluding to Robertson's view that infertile couples have a right to engage in collaborative reproduction as the only means for obtaining a child, maintains that this argument is compelling only if the couple desires a child to rear. She writes, "No one argues that the surrogate mother is exercising her right to procreate by becoming pregnant through a surrogate arrangement." Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy, 1986 Duke L. J. 806, n78. However, this seems to be just what Robertson does argue, for he says that commercial surrogacy may have to be tolerated because "the procreative liberty of all the parties is so intimately involved" [227, emphasis added]. Robertson has recently explained to me that he did not mean to suggest that the right to be a surrogate is directly derived from the right to reproduce. Rather, the procreative liberty of the contracting couple, which gives them a right to engage in collaborative reproduction, creates a derivative right to be a surrogate on the part of the woman with whom they contract. Robertson thinks that this is analogous to abortion where a woman's procreative liberty, which gives her the right to have an abortion, creates a derivative right on the part of a doctor to perform the abortion. However, a doctor's right to perform an abortion does not involve the doctor's procreative liberty. Either the analogy is inapt, or Robertson's claim that the procreative liberty of all the parties is intimately involved in surrogacy is false.

Lori B. Andrews is one commentator who clearly thinks that procreative liberty protects reproduction tout court. She criticizes the OTA Report on Infertility as giving "inadequate attention to the possibility that the decision to create a child that he or she will not rear may be as important to the gamete donor or surrogate as would be the decision not to create a child, or the decision to create a child that he or she will rear." Andrews, Control and Compensation: Laws Governing Extracorporeal Generative Materials, 14 J. Med. & Phil. 545 (1989).

(3) Arthur, The Norplant Prescription: Birth Control, Woman Control, or Crime Control, 40 UCLA L. Rev. 17, n. 93 (1992).

(4) When Robertson says that noncoital reproduction should be given "the same protection" as coital protection, he means that the state may not prevent infertile couples from using noncoital means to reproduce, any more than it would be justified in preventing couples from using coital means. Robertson does not think that there is a positive or welfare right to fertility treatment. The right to reproduce is only a negative right, that is, a right against interference with the attempt to reproduce.

(5) For development of this idea, see Steinbock & McClamrock, When Is Birth Unfair to the Child? 24 Hastings Center Report 15-21 (1994).

(6) Roe v. Wade, 410 U.S. 113, 153 (1973).

(7) Adrienne Asch thinks that there is a significant moral difference between aborting to avoid becoming a parent and aborting a specific fetus because it has a defect. See her Reproductive Technology and Disability, in Reproductive Laws for the 1990s (Cohen and Taub, eds. 1989). For a response, see my Life Before Birth: The Moral and Legal Status of the Embryo and Fetus 206-208 (1992).

(8) Nearly all IVF programs test couples for HIV and may refuse the procedure if one or both test positive. Robertson writes, "The exclusion is usually justified on the 'ethical' ground of protecting offspring who would be born in disadvantageous circumstances. However, providing IVF services to these groups would not harm children who have no other way to be born, and thus may ethically be provided if a program is so inclined" [117]. However, in Robertson's view, clinics are not merely free to provide IVF services to HIV-positive couples; they would be wrong to deny them since this would discriminate against persons with AIDS, and violate their right to reproduce. Robertson has acknowledged that he is committed to this stronger view in personal communication.

(9) The "Donor" story thus contrasts with the real-life Ayala story, in which a couple decided to have a third child, in the hopes that her bone marrow would be compatible with their older daughter's and save her from life-threatening leukemia. The Ayalas intended to love the new baby as a member of their family, regardless of whether her bone marrow could be used to save Anissa. See "When One Body Can Save Another," Time, June 17,1991, at 54-58.

(10) This example was suggested to me by John Arras.

(11) See D. Parfit, Reasons and Persons 357-61 (1984).

(12) See Arthur, The Norplant Prescription, supra note 3.

(13) Id. at 79.

(14) Of course, not everyone who falls under these descriptions is incapable of being an adequate parent. Some mentally ill and retarded individuals can be very good parents, with help and supervision. However, youth and mental disability are very often conditions that prevent people from being adequate parents and provide reasons for suspecting that some will be unable to be a rearing parent. My point is that if someone is incapable of being a rearing parent, even with help, it is wrong to ascribe to such a person a right to reproduce.

(15) See Scott, supra note 2, at 828-29.

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Author:	Steinbock, Bonnie
Publication:	Criminal Justice Ethics
Article Type:	Book Review
Date:	Jan 1, 1996
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