Student Scholarship: Procreative Rights, and Child Welfare and Future Persons

Carter Dillard (LLM candidate, NYU) has posted two articles on SSRN.  Here are the abstracts:

Rethinking the Procreative Right:

Few principles are as universally accepted in legal scholarship today, but based on such scant support, as the fundamental nature and broad scope of the right to procreate. What is perceived as a vague but nonetheless justified legal and moral interest to procreate freely without regard to others is, upon closer examination, based on little more than misconstrued or inapposite case precedent and blurry statements in non-binding sources of international law. By relying on this authority, conflating procreation with conceptually distinguishable behaviors, presuming its intrinsic value, and ignoring competing rights and duties, lawyers have largely overlooked procreation and its legal and normative limits. Interpreting U.S. constitutional and international law sources, and finally employing Locke's model of natural rights, this Article redefines the right in law and practice as satiable and narrow, acknowledging the competing rights and duties that both qualify and justify the right. It posits that the procreative right, properly stated, includes at least the act of replacing oneself and at most procreation up to a point that optimizes the public good.

Child Welfare and Future Persons:

While ethicists have delved deep into the rights and wrongs inherent in procreating, lawyers have had little to say about the matter, stymied by practical concerns, the tendency of the law to ignore future persons and their interests, and the misperception of a fundamental rights boundary that absolutely forbids state intervention. But recently a small door has opened in the wall between law and ethics, as some courts faced with having to constantly remove abused and neglected children from parents adjudged unfit have issued temporary no-procreation orders. As precedent slowly begins to form and the possibility of ex ante regulation of procreation and parenthood begins to grow, a moral and legal debate is beginning over what duties prospective parents owe their future children and the society with which they will interact, the resolution of which will in part define the actual constituency of the future state. This Article is the first to cut through the debate, which is a muddle of conflicting state and constitutional law, uncovering the essential principle at its core, and arguing for codification of that principle. It posits, largely through deductive reasoning, that there is a moral and legal duty on a prospective parent to be fit when he or she has a child, one arising from or creating correlative claim-rights shared by the state and prospective children, and a prospective parent has no liberty to have a child until he or she is fit. It argues for codification of this principle to be applied in cases of recurring abuse and neglect, taking courts out of the sea of confusion where they have been left by politically sensitive legislatures, and allowing them to best protect the various interests involved and avoid irreparable harm.