Family Law Prof Blog

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

Friday, June 4, 2010

Fox: "Choosing Your Child's Race"

Dov Fox has posted "Choosing Your Child's Race" (forthcoming Hastings Women's Law Journal) on SSRN.  Here is the abstract:

This short essay refects remarks presented at a symposium on "Regulating Reproductive Technologies" at Hastings College of Law. My topic was the practice by which sperm banks separate donor catalogs according to race. We should care about the race-conscious design of decisionmaking frameworks like donor catalogs, dating websites, and election ballots, I suggest, because the reinscription of race within meaningful spheres of life such as politics, romance, and reproduction can rectify or reconstitute racially-defined ways in which we understand ourselves and relate to others. I argue that variously salient means of racial disclosure can communicate more or less acceptable ideas about the role that race should play in the decisions that parents who use donor gametes make about what kind of child to have.

There is a spectrum of salience-varying approaches that sperm banks could adopt to manage information about donor race. I consider four: race-indifferent, race-sensitive, race-attentive, and race-exclusive. Race-indifferent means of disclosure withhold the racial identity of donors altogether. Race-sensitive means, by contrast, identify racial background as one donor characteristics alongside others, thus enabling prospective parents to choose a sperm donor on racial grounds, but only if they scroll through the catalog and at least glance at each donor profile one by one. A race-attentive approach not only reveals race but places emphasis on it, by designing donor catalogs and online search functions in ways that make it easy for prospective parents, if they wish, to view just donors of a certain race, or to omit donors of another. Race-exclusive means differentiate donors by racial information only, thus according race a presumptively decisive role in customers’ decisions about which sperm donor to choose.

I argue that the race-attentive partitioning of donor catalogs along racial lines is a pernicious practice we should resist because it sends a message that prospective parents should select donors on the basis of race and because it credentializes assumption that single-race families are preferable to multiracial ones. The close analogy to dating websites gives reason for skepticism. If people should have access to dating services that facilitate partner searches with an eye to race, why not to provide the same measure of assistance to infertile heterosexual couples, lesbian couples, and single parents seeking to find a sperm donor of a particular race? The primary reason I give is that the market in donor insemination mediates the practice of reproduction to eliminate the intimacy (and with it the relational autonomy interests) that marks in sexual reproduction and romantic dating. Parents and donors transact at arms length through a corporate broker who doesn’t permit either party even to learn the name of the other, let alone to have intimate contact. Dating websites deal in the union of people; sperm banks deal in the union of gametes. What’s present in the romantic matching context that’s missing in the reproductive matching context is meaningful interface between the parties on either side of the exchange. So there are lesser interests of relational autonomy at stake in assisted reproduction by comparison to those in sexual reproduction or romantic dating.


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