Family Law Prof Blog

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

Monday, July 26, 2010

Dillard: "Procreation, Harm, and the Constitution"

Carter Dillard (Loyola University New Orleans) has posted Procreation, Harm, and the Constitution, 105 Northwestern University Law Review Colloquy 5 (2010) on SSRN.  Here is the abstract:

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional?

These questions are not new, but my answers to them are and add to the existing literature in several ways. First, I offer a possible resolution to a recent debate among legal scholars regarding what has been called the nonidentity problem and its relation to the right to procreate. Second, using that resolution, I provide a novel constitutional argument that at least begins to justify limiting the right to procreate.

This Essay proceeds in three parts. Part I introduces the nonidentity problem, explains why it creates seemingly irresolvable dilemmas for constitutional law, and sketches out two opposing positions in the legal debate. Part II uses a common exception to the nonidentity problem to buttress Lukas Meyer’s solution: the notion of threshold harm. If my argument holds true, one cannot admit there is such a thing as a life not “worth living” without endorsing the notion that future persons deserve lives above some minimum threshold of well-being. Finally, Part III analogizes threshold harm to the state’s compelling interest in protecting the welfare of living children. It demonstrates that if the state can limit the fundamental right to parent children when the parenting would cause the children’s lives to be below a defined threshold of well-being, then the state can limit the fundamental right to procreate.


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