Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, May 20, 2010

Cohen: "Well, What About the Children? Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction"

Glenn Cohen (Harvard Law School) has posted "Well, What About the Children? Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction" on SSRN.  Here is the abstract:

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over age 50 be allowed access to reproductive technologies? Should the state fund abstinence education? One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result (absent state intervention) from these forms of reproduction. This focus on the Best Interests of the Resulting Child (“BIRC”) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention – the protection of the best interests of existing children – visible in areas such as adoption, child custody, and child removal. While, as I document, parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state or third-party interventions that seek to influence whether, when, and with whom individuals reproduce, in this Article I show that such justifications are problematic and misleading.

Drawing on insights from bioethics and the philosophy of identity relating to the so-called “Non-Identity Problem,” I show why this form of justification, at least stated as such, is problematic both as a normative and constitutional matter: Unless failing to intervene would foist upon the child a “life worth not 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. Nevertheless I show that BIRC arguments are frequently relied upon to justify these interventions. At a doctrinal level I also show that this reliance on BIRC justifications is in tension with the partial recognition of the Non-Identity Problem by courts rejecting wrongful life torts.

Having demonstrated the unworkability of the BIRC argument as stated, I go on to consider six possible arguments that might substitute for BIRC as justifying these interventions. I begin with two less interesting and I think less satisfying possibilities relating to lives not worth living and illiberal culture control or kulturkampf. I then consider a strategy that would draw a novel distinction between what I call “perfect” and “imperfect” Non-Identity Problems and suggest that BIRC reasoning is only problematic for the perfect cases. I explain why I find none of these approaches satisfying as a normative and constitutional matter. I then examine and adapt three frameworks offered by philosophers for the wrongfulness of creating children with lives worth living that do not rely on BIRC-type reasoning: the first appealing to non-person-affecting principles and same number substitutions, the second relating to negative third party externalities, and the third (more deontologically flavored) claiming we can wrong children by bringing them into existence notwithstanding the fact that they are overall benefited. For each I aim to show three deficiencies as BIRC substitutes. First, they cannot support the full gamut of interventions for which BIRC is usually invoked. Second, I put pressure on their adequacy even as moral criterion for wrongfulness, including by showing that adopting any of these rationales has some disturbing implications. Finally, I argue that even if these approaches offer an appropriate criteria for the moral wrongfulness of becoming a parent in these cases, on a political theoretical level they may not be valid bases for legal interventions (especially those interventions that pose significant limitations on liberty such as the criminalization of conduct).


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