September 29, 2008
Selling Your Patrimony?
Ordinarily we don’t pay much attention here to the kind of cosmic questions that show up frequently in moot court competitions, like whether there’s some sort of constitutional right not to become a "genetic parent." But when the question becomes whether you ought to be able to contract to do so, that’s another story.
In a paper forthcoming in the Southern California Law Review, The Right Not to Be a Genetic Parent? [sic], Harvard’s Glenn Cohen first argues that courts ought to recognize the right to be free from genetic parenthood, because of the "harm that stems from the social assignment of the status of parent to the provider of genetic material that persists notwithstanding the fact that the legal system has declared him or her a non-parent."
But that’s neither here nor there. Cohen goes on to argue that whatever the source of the right, you ought to be able to contract in advance to surrender that right, so long as suitable mechanisms are in place to ensure consent. Here’s the abstract:
Should the law recognize an individual's right not to be a genetic parent when genetic parenthood does not carry with it legal or gestational parenthood? If so, should we allow individuals to waive that right in advance, either by contract or a less formal means? How should the law's treatment of gestational and legal parenthood inform these questions? Developments in reproductive technology have brought these questions to the fore, most prominently in the preembryo disposition cases a number of courts have confronted - disputes over the use of stored frozen preembryos that couples have fertilized in the course of In Vitro Fertilization (IVF) - but other examples abound.
In this Article, I argue that in analyzing these cases it is essential to unbundle the possible rights not to be a genetic, gestational, and legal parent, and to recognize that the three rights do not stand and fall together. I show that we cannot move from the discourse surrounding the rights not to be a gestational and legal parent to a justification for a right not to be a genetic parent. Instead, I argue that the normative mooring of the right not to be a genetic parent is best understood as a way of protecting individuals from what I call "attributional parenthood," a harm that stems from the social assignment of the status of parent to the provider of genetic material that persists notwithstanding the fact that the legal system has declared him or her a non-parent.
Using this framework, I argue for the recognition of the right not to be a genetic parent. However, I reject the claim, common among courts and commentators, that this right should not be capable of advance waiver. I instead conclude that we should permit advance waiver of the right through contract, with several interventions aimed at improving contractual consent. In preembryo disposition disputes where the parties have not contracted, I argue for a general default rule of non-use, perhaps with a sub-rule permitting use when non-use would mean the impossibility of one party ever having any genetic children.
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