By Ben A. Rich, J.D., Ph.D., UC Davis School of Medicine Bioethics Endowed Professor
In 1980, a provocative article entitled "Licensing Parents" appeared in the highly regarded academic journal Philosophy & Public Affairs. The thesis of the author, Hugh LaFollette, as the title suggests, was that the state should require all parents to be licensed.
LaFollette argued that the usual conditions precedent for state licensure – the occupation or activity in question is potentially harmful to others and safe performance of the activity requires a certain demonstrated competence – are clearly met in the case of parenting.
Anticipating outrage from readers who thought his proposal was radical in the extreme, LaFollette pointed out the rigorous screening to which the state subjects parents who seek to adopt the children of others.
More recently, University of Wisconsin School of Medicine psychiatrist Jack Westman, an authority on child abuse and neglect who wrote in a 1994 book that the most fundamental underlying cause of violent crime is parental neglect and abuse of children and the most effective way of addressing the problem is to subject parenthood to a licensure requirement, is one of several who have taken positions consistent with LaFollette's.
In addition to conjuring up images of an Orwellian police state, such proposals challenge the generally accepted proposition that procreation is a fundamental human right, not a privilege that may be conferred or withheld by the state.
The concept of procreative liberty – an intrinsic right to reproduce – originated in the form of a negative right, i.e., that the state should not have the authority to deprive a person of his/her natural capacity to procreate by compelling them to undergo a sterilization procedure.
In the heyday of the eugenics movement in the late 19th and early 20th centuries, the existence of this right was hotly contested, at least with regard to prisoners and the developmentally disabled.
It was the esteemed Supreme Court Justice Oliver Wendell Holmes who wrote in the landmark case of Buck v. Bell (1927):
"It is better for all the world if, instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind…Three generations of imbeciles are enough."
Procreative liberty is actually about the right to make personal decisions (choices) about reproductive matters, thus it includes access to contraceptive measures or to medical assistance to terminate an unwanted pregnancy. Here too, the U.S. Supreme Court has been a major player, recognizing the right of access to contraceptive information and devices/drugs in Griswold v. Connecticut (1965), and to abortion in Roe v. Wade (1973) and again in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).
In the most recent of these decisions the Court stated: "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education."
The pro-life movement takes conscientious exception to the proposition that decisions to prevent or terminate pregnancy by chemical (e.g., RU-486) or surgical (e.g., dilation and evacuation or curettage) measures performed post coitus are merely about the exercise of negative procreative liberty, insisting instead that such measures violate the sanctity of human life and the natural order of human reproduction and birth – "it's a child not a choice."
New reproductive technologies
As a positive right, procreative liberty involves being provided with some form of assistance from another person or the state without which the exercise would be difficult or perhaps even impossible. Examples include access to noncoital reproductive assistance such as in vitro fertilization (IVF) or artificial insemination.
Attitudes within our society about the morality of these new reproductive technologies vary widely based upon cultural and religious perspectives. Some believe the age, marital status or sexual orientation of the person or persons seeking such reproductive assistance can legitimately affect the moral valence of the process.
Should the state determine the parameters of acceptable "family values," or should this be a private matter of the individuals involved?
The California Supreme Court recently ruled that a clinic providing fertility treatments had violated a state antidiscrimination law when two of its physicians refused to provide intrauterine insemination (IUI) to a lesbian patient on the basis of their personal religious beliefs. A disputed issue was whether the physicians refused to provide IUI because the patient was a lesbian or because she was unmarried. In either case, the physicians were asserting a right to refuse reproductive assistance based upon their personal moral or religious "family values."
The birth of octuplets to Nadya Suleman earlier this year has reinvigorated the debate over whether anyone with the inclination and opportunity to become a parent should be allowed to do so without exception.
At the time that Suleman used IVG to become pregnant, she had been unemployed since 1999, was single and living on disability payments, food stamps and student loans. She already had six children at home, also conceived through IVF, allegedly through the services provided by the same Beverly Hills fertility clinic. The California Medical Board and the American Society of Reproductive Medicine (ASRM) are investigating the physician involved in an effort to determine whether any professional standards were violated.
The analogy between the LaFollette article and the Suleman situation lies in their capacity to remind us that, while at first glance reproductive rights are all about the prospective parent(s), the interests and well-being of the children who will follow from that exercise of liberty have interests and are of vital concern to society.
A 2004 ASRM report provides that fertility clinics may withhold services when they have "wellsubstantiated judgments" that the child will not receive adequate care. However, the report goes on to state: "except when significant harm to a future child is likely," such practitioners "should not be required to make assessments of a patient's child-rearing abilities or other child welfare issues."
Since most physicians are not comfortable making such assessments, the ASRM policy provides a convenient means of sidestepping the whole value-laden issue.
How to strike the proper balance between the rights of actual or prospective parents and the children they would bring into the world is likely to remain the focus of a vigorous debate.