Tuesday, February 14, 2012
What is the legal significance of regret following a reproductive decision or outcome? In Gonzales v. Carhart, a Supreme Court majority offered one answer to this question, famously invoking the regret of some women for their past abortions as a reason to uphold a federal law criminalizing a particular abortion procedure. But Gonzales is not the first case to confront what I call 'reproduction and regret,' and the Court’s approach in Gonzales ignores the contrasting judicial responses from these other cases.
This Article supplies the missing analysis - contextualizing Gonzales’s treatment of reproduction and regret by identifying and developing five additional models. These additional models come from disputes about adoption surrenders, the performance of surrogacy arrangements, support obligations arising from children born of unplanned pregnancies, the use of previously frozen embryos, and the status of sperm donors. Each model depicts a different understanding of reproduction and regret, supplementing Gonzales and the ensuing commentary on that case with a more expansive inquiry into the work courts have used regret to perform and the unarticulated assumptions or normative commitments that might explain the doctrinal and rhetorical inconsistencies. This wider lens illuminates regret’s regulatory function across the range of cases.
This Article’s examination of regret as a regulatory tool in turn has three analytical payoffs. First, it disrupts Gonzales’s depiction of regret as a natural and self-generated emotion, clarifying the role of the state in producing regret. Second, it reinforces the critiques of Gonzales’s use of maternal stereotypes with a more robust account of gender that not only includes stereotypes of fatherhood but also exposes a specific link among regret, heterosexual intercourse, and unexamined beliefs about sexual pleasure. Finally, it highlights deep policy rifts in family law, a field that continues to prioritize the regulation of sex in particular, despite rhetoric to the contrary.
The importance of the jurisprudence of reproduction and regret transcends the particular disputes that exemplify it. As a general matter, contemporary family law celebrates what the Supreme Court has called 'the private realm of family life' and scholars have called “the republic of choice.” This vision not only puts a premium on individual decision making; it also complicates the question of what the legal significance of an actor’s own second thoughts about such decisions should be. An analysis of reproduction and regret thus offers a window into family law’s foundational values and contests writ large, providing insights into the principles, themes, and clashes dominating family law today.