Anaya Nolan
Professor John Robertson is renowned for his theory of procreative liberty, which he introduced in a Virginia Law Review article and later expounded upon in his book, Children of Choice. Procreative liberty is the 'freedom to reproduce without sex' and the 'freedom to have sex without reproduction', which are recognised by existing constitutional rights to abortion and birth control. Robertson advocated for a new constitutional right to become pregnant and to parent, which would protect the freedom to reproduce when, with whom, and by what means one chooses. This freedom is limited to reproductive decisions that enlist medical intervention. The most controversial aspect of Robertson's work on procreative liberty was its application to the prenatal selection of offspring characteristics. He argued that people should have a constitutional right against laws that limit the use of reproductive medicine or technology to have or avoid having a child with specific traits. This essay will explore the topic of procreative liberty and discuss whether it should be recognised as a constitutional law.
| Characteristics | Values |
|---|---|
| Definition | Procreative liberty captures the 'freedom to reproduce without sex' above and beyond the 'freedom to have sex without reproduction' |
| Theory by | Professor John Robertson |
| First introduced in | Virginia Law Review article |
| Expounded in | Book, Children of Choice |
| Procreative liberty includes | Constitutional rights to abortion and birth control |
| Robertson's view on constitutional law | People should have a constitutional right against laws that limit the use of reproductive medicine or technology to have (or avoid having) a child who is (or would be) born with particular traits |
| Other views | Procreative liberty would protect only actions designed to enable a couple to have normal, healthy offspring whom they intend to rear |
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What You'll Learn
Prenatal selection of offspring characteristics
Professor Robertson is known for his theory of 'procreative liberty', which he introduced in a Virginia Law Review article and later expanded upon in his book, "Children of Choice". Procreative liberty is the "freedom to reproduce without sex" beyond the "freedom to have sex without reproduction" that is recognised by existing rights to abortion and birth control.
Robertson advocated for a new constitutional "right to become pregnant and to parent", which would protect the "freedom to reproduce when, with whom, and by what means one chooses". He argued that this right should extend to external conception and the use of medical intervention, such as reproductive medicine or technology, to have (or avoid having) a child with particular traits. This is known as prenatal selection of offspring characteristics or designer babies.
The use of prenatal selection of offspring characteristics raises ethical concerns. Some commentators worry that it "commodifies" children, turning them into commercial products. They argue that this approach reduces the autonomy and identity of the child by restricting their life within a framework of genetic predictions. There are also concerns about the safety and effectiveness of these interventions, as well as the potential for social harm.
In the United States, there is no federal regulation of preimplantation genetic diagnosis (PGD), and elective sex selection is permitted. However, many geneticists and bioethicists argue for more stringent regulations to prevent the potential reinforcement of societal biases and eugenic practices.
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Abortion laws
Prior to the Dobbs v. Jackson decision, Roe v. Wade ensured legal abortion throughout the U.S. for 49 years. However, even during this period, certain laws and restrictions were in place, impacting access to abortion care. These included laws requiring parental notification or consent for minors seeking abortions, mandatory counselling or ultrasounds before abortion care, and prohibitions on specific methods of abortion, such as dilation and extraction (D&X) and dilation and evacuation (D&E) procedures. Additionally, the Hyde Amendment, enacted in 1976, prohibits federal funding for abortion and has been annually renewed by Congress.
Following the 2022 ruling, states have introduced new abortion restrictions and bans, with varying impacts on individuals, especially those from marginalized communities. These restrictions are often based on gestational duration, viability, general health, physical health, and lethal fetal anomalies. For example, Iowa has exceptions for rape and incest, but survivors are required to report the incident within a specified timeframe. Additionally, interstate shield laws protect abortion providers and helpers in states where abortion is legal from civil and criminal consequences when providing care to out-of-state residents.
The concept of procreative liberty, introduced by Professor John Robertson, asserts the "freedom to reproduce without sex" and the "freedom to have sex without reproduction." Robertson advocated for a constitutional "right to become pregnant and to parent", allowing individuals to make reproductive choices with medical intervention. This includes the use of reproductive medicine or technology to have or avoid having a child with specific traits, though he stopped short of supporting alterations to trivial traits like eye colour or enhancing intelligence. Robertson's theory challenges abortion bans based on genetic anomalies, sex-selective abortion bans, and laws barring abortion on racial grounds.
While procreative liberty emphasizes individual freedom and choice in reproduction, abortion laws aim to balance these liberties with ethical considerations and the protection of vulnerable groups. The shifting legal landscape of abortion in the United States underscores the ongoing debate and evolving nature of reproductive rights and their legal framework.
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Constitutional liberty against government interference
Professor John Robertson is known for his theory of 'procreative liberty', which he introduced in a Virginia Law Review article and expanded upon in his book, "Children of Choice". Procreative liberty is the 'freedom to reproduce without sex', which is an extension of the 'freedom to have sex without reproduction' that is recognised by existing rights to access abortion and birth control.
Robertson advocated for a new constitutional right to become pregnant and to parent, which would protect the freedom to reproduce when, with whom, and by what means one chooses. He argued that this right includes the freedom to contract with donors, surrogates, and physicians for the creation, gestation, and rearing of children. Robertson limited this freedom to reproductive decisions that enlist medical intervention.
Most controversially, Robertson applied procreative liberty to the prenatal selection of offspring characteristics. He believed that people should have a constitutional right against laws that limit the use of reproductive medicine or technology to have (or avoid having) a child with specific traits. He argued that if people are generally free to choose whether to reproduce and if the genetic characteristics of expected offspring will affect that decision, they should be free to use genetic information in making those decisions. However, he did not support using reproductive technology to modify trivial traits like eye colour or enhance characteristics like intelligence.
Robertson's theory of procreative liberty highlights his concern for constitutional liberty against government interference. His work suggests that he would have opposed abortion bans based on genetic anomalies or racial grounds, as seen in several US states. Instead, he prioritised the freedom of prospective parents to make informed choices about their future children's traits. This freedom extends to the use of fertility clinics, sperm banks, and medical practices. However, the question arises as to how American law should protect against professional negligence that disrupts these efforts.
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Freedom to reproduce without sex
The concept of "procreative liberty" was first introduced by Professor John Robertson in a Virginia Law Review article and later expounded in his book, "Children of Choice". Procreative liberty refers to the "freedom to reproduce without sex", which goes beyond the "freedom to have sex without reproduction" that is already recognised by constitutional rights to abortion and birth control.
Robertson advocated for a new constitutional "right to become pregnant and to parent", which would protect the freedom to reproduce when, with whom, and by what means one chooses. This includes the use of noncoital reproductive technologies, such as embryo freezing, donation, and surrogate gestation. Robertson's argument centres on the idea that if people are generally free to choose whether or not to reproduce, they should also be free to use genetic information to make those decisions.
The development of in vitro fertilisation (IVF) and other reproductive technologies has made it possible for couples to reproduce without sexual intercourse. IVF involves creating an embryo from a couple's gametes and replacing it in the woman's uterus, with a success rate of about 25% according to UK data. Other methods, such as placing sperm in the vagina when an egg is released, have also been used since at least the 18th century.
While procreative liberty provides individuals with more choices and freedom, it also raises ethical and social implications. For example, the use of reproductive technologies can be controversial when used to select specific offspring characteristics, such as in the case of prenatal selection or sex-selective abortion. Additionally, the freedom to reproduce without sex can impact traditional social structures, such as the role of churches in refusing to marry gay couples due to their inability to reproduce. Furthermore, the quest for reproduction without sex can lead to exploitation, as seen in the case of poor women "donating" their eggs or wombs.
To address these concerns, some argue for the need to protect the welfare of embryos, offspring, donors, and surrogates, while also ensuring that reproductive choices are free from discrimination, coercion, and government interference. States have an obligation to ensure that sexual and reproductive health services, goods, and information are available, accessible, culturally appropriate, and provided with respect for human rights and privacy.
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Reproductive choice and embryo welfare
The concept of "procreative liberty" was introduced by Professor John Robertson in his book "Children of Choice". This theory captures the "freedom to reproduce without sex" and the "freedom to have sex without reproduction", which are recognised by existing rights to access abortion and birth control. Robertson advocated for a new constitutional right to become pregnant and to parent, allowing individuals to make choices about reproduction methods and timing. This includes access to reproductive medicine and technology, such as embryo freezing, donation, and surrogate gestation.
Robertson's work on procreative liberty was particularly controversial regarding the prenatal selection of offspring characteristics. He argued that individuals should have a constitutional right to use reproductive technology to have or avoid having a child with specific traits. This freedom, according to Robertson, should be limited to decisions involving medical intervention.
The application of procreative liberty raises ethical considerations, especially in the context of embryo welfare. Recent research in reproductive medicine has explored the use of artificial intelligence (AI) to improve embryo selection. While this technology has been met with enthusiasm, it also raises ethical concerns. AI-assisted embryo selection can lead to social disruption and a change in reproductive morality. It creates a pull towards assisted reproduction, even for those who can reproduce naturally.
The convergence of AI with other reproductive technologies, such as improved embryo culture and optimisation, further complicates the ethical debate. This technological interplay can influence reproductive choices and justice, impacting the welfare of embryos and reproductive collaborators. Additionally, the use of AI in embryo selection raises questions about liability gaps and risks arising from opaque decision-making.
Reproductive rights are fundamental human rights that encompass various aspects, including the right to abortion, birth control, freedom from coerced sterilisation and contraception, and the right to reproduce and start a family. These rights aim to ensure that individuals have the information and access necessary to make free and informed reproductive choices. Reproductive justice, a related concept, acknowledges the broader social and economic factors that influence an individual's ability to exercise their reproductive rights.
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Frequently asked questions
Procreative liberty is the 'freedom to reproduce without sex' beyond the 'freedom to have sex without reproduction'. It is the idea that people should have the right to reproduce when, with whom, and by what means they choose.
Proponents of procreative liberty argue that it should be protected as a constitutional right, safeguarding individuals from government interference in their reproductive choices. This includes access to abortion, birth control, and reproductive technologies like IVF, embryo freezing, and surrogacy.
Critics argue that procreative liberty could enable unethical practices, such as eugenics, and raise concerns about the welfare of embryos, offspring, donors, and surrogates. There are also questions about how to protect against professional negligence in the field of reproductive medicine.
