Procreative Liberty:  Whose Procreation, Whose Liberty?

Stanford Law and Policy Review 6:2 (1995): 121-125.

Joan C. Callahan

Professor, Philosophy and Director, Women's Studies

University of Kentucky

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Critical Notice of John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies.  Princeton, New Jersey: Princeton University Press, 1994.  277 pp., including notes and index.

I

John Robertson's work is well known to readers of the legal, medical, and bioethics literatures.  Like all of his work, Children of Choice: Freedom and the New Reproductive Technologies should interest practitioners and analysts from law, medicine, philosophy, and public policy, as well as readers with any interest in the pressing questions that human reproduction can involve as we approach the millennium.^[1]  In other words, it should interest most of us.  The book is well informed, instructive, helpful in illuminating the issues, very nicely written, and it is completely accessible to readers with no formal background in medicine, ethical theory, or law.  It is, unquestionably, a good book that should be widely read and widely discussed, not only because Robertson has done an excellent job of laying out the issues; but also because his view is one that resonates for good liberals and that nicely systematizes what many good liberals think about freedom and the use of reproductive technologies.

Children of Choice is neatly divided into five sections, with two chapters in each: an untitled introductory section and sections titled "Contraception and Abortion," "Assisted Reproduction," Quality Control," and "Extensions and Limitations."   The chapters are: (1) "Introduction: Technology, Liberty, and the Reproductive Revolution," (2) "The Presumptive Primacy of Procreative Liberty," (3) "Abortion, Contragestion, and the Resuscitation of Roe v. Wade," (4) "Norplant, Forced Contraception, and Irresponsible Reproduction," (5) "IVF, Infertility, and the Status of Embryos," (6) "Collaborative Reproduction: Donors and Surrogates," (7) "Selection and Shaping of Offpsring Characteristics: Genetic Screening and Manipulation," (8) "Preventing Prenatal Harm to Offpsring," (9) "Farming the Uterus: Nonreproductive Uses of Reproductive Capacity," and (10) "Class, Feminist, and Communitarian Critiques of Procreative Liberty."  As the list of sections and chapters suggests, the book touches on most of the major loci of debate over contemporary human reproductive technologies. 

Robertson's expressed project in the book is to develop and apply a view he calls "procreative liberty," primarily as that view pertains to the use of reproductive technologies.  He characterizes "procreative liberty" in several ways--as "the freedom to decide whether or not to have offspring" (p. 4), "the freedom to decide whether or not to have offspring and to control the use of one's reproductive capacity" (p. 16), and "the freedom to have and rear offspring" (p. 119), all absent "government restriction, unless  a strong justification for limiting [these freedoms] can be established" (p. 4).   These characterizations of the complex principle at work here are, obviously, not equivalent; but I think it is safe to say that, jointly, they define procreative liberty as a normative view which holds that individuals should have freedom to choose whether or not to procreate and rear offspring, and freedom to otherwise control the use of their reproductive capacities; and these freedoms are taken to be freedom from government restriction unless a compelling reason for government interference can be established.  What will count as a compelling reason for Robertson is what counts for most traditional liberals -- substantial harm [to others] (p. 24). 

As the chapter titles imply, Robertson wants to use this normative perspective as a lens through which to assess questions pertaining to the use of reproduction-inhibiting technologies, including various forms of contraceptive and abortion technology, as well as the use of reproduction-assisting technologies, such as artificial insemination (AI), in vitro fertilization (IVF), "surrogate" motherhood, gamete donation, gamete intrafallopian transfer (GIFT), zygote intrafallopian transfer (ZIFT), embryo transfer (ET), cryopreservation of embryos, and so on.  His general conclusion is that, absent substantial harm to others, "individuals should be free to use these technologies or not as they choose" (p.4). 

Robertson's conclusion is not uncontested.  Nor is it even clear without careful analysis just what his conclusion means, since "freedom" and "choice" are themselves neither transparent nor uncontested concepts.  For example, the model of freedom Robertson expressly assumes is a noninterference model.  It certainly goes without question that meaningful procreative freedom in a social system must include political freedom or presumptive general freedom from government intrusion into individual attempts to limit or effect reproduction.  But while political freedom might be sufficient for meaningful procreative freedom for those who are relatively powerful in a social system, even good liberals today recognize that such freedom is far from sufficient for meaningful procreative freedom for those who are unable to deploy their "choices" because they lack the social position or economic means to do so.  Thus, for example, political freedom to seek an abortion is undeniably a good for a poor woman.  But if she hasn't the means to purchase abortion services in a society where such services are available only in a private market, then her political freedom to seek an abortion will rightly strike her as little more than symbolic.

There are, then, important questions to be asked about the notions of "freedom" and "choice" at work in Robertson's view.  He does take his final chapter to anticipate and respond briefly to various objections from egalitarians, feminists, and communitarians; but there is a good deal of assertion there and much less detailed argument than adequate responses to such objections require. A full treatment of his position would include a careful discussion of the concepts of "freedom" and "choice" his view expressly assumes and their adequacy in an account of genuine procreative freedom for everyone in a social system.

A full treatment of Robertson's position would also include a careful discussion of the feminist and communitarian objections he raises in Chapter 10, along with some others.  These objections to his position are external ones, and I shall set them aside here.  Rather, I want to focus on an internal problem with Robertson's position.  That is, I want to suggest that Robertson's view is seriously misleading and that it falls into inconsistency.  In order to show this, I begin by placing Robertson's position into relation with the status quo on the recognition of reproductive freedom so that we can see clearly just what he is suggesting about procreative liberty in general.

II

Robertson makes explicit at the outset that he means to argue that precisely the same respect that is shown for individuals' reproduction "au naturel" must be shown for individuals' deploying technologies to effect reproductive limitations or achievements.  In one sense, this is clearly a progressive view, since Robertson firmly opposes legal prohibitions on access to technologically-assisted contraception and abortion, as well as legal prohibitions on reproduction-assisting technologies. 

Consider, for example, a number of features of Robertson's discussion in the introductory Chapter 1.  He says that "procreative liberty deserves presumptive respect because of its central importance to individual meaning, dignity, and identity" (p. 16).  One might think that this would pertain to any individual, not just those who participate in a formal social institutions such as marriage.  But Robertson goes on nearly immediately to say that while "there have always been restrictions on who may marry and who may have sex, the freedom to have children within the marital relation has always been highly recognized" (p. 16), indicating that his argument is meant to defend equal protection from interference for the reproductive interests of married persons who, for any reason, are unable to reproduce coitally .  And even though he says in Chapter 2 that although talk of reproductive freedom is "often expressed or realized in the context of a couple, it is first and foremost an individual interest" (p. 22), and that "bearing, begetting, [and] parenting children is protected as a part of personal privacy or liberty" (p. 39), such observations are completely obscured by the book's constant references to couples.    Thus, for example, in the sentence following the passage just quoted, Robertson says "the interest of the couple in rearing children who are biologically related to one or both rearing partners is so close to the coital model that it should be treated equivalently" (p. 39, emphases added).  Similarly, even though early in Chapter 6 Robertson mentions that a so-called surrogacy arrangement or what he sometimes calls "collaborative reproduction" might be sought by "a single woman or a same-sex couple" (p. 119), the chapter's discussion is riddled with references not only to (presumably heterosexual) couples, but to husbands and wives.   The reproductive interests in noninterference best protected by Robertson's view, then, are those of married heterosexuals.  But this is a good distance from protection of the purported reproductive interests of any individual.  This feature of Robertson's view is a feature common to many current liberal views--they often fail to realize their service to existing norms.  In this case, the reproductive norm is taken to be the married heterosexual couple, and that norm, despite Robertson's explicit attempts to include those outside the norm, is presumed and exclusively protected by his view.      

III

Not only is Robertson's view generally one that privileges and exclusively protects the reproductive interests of married heterosexuals; the same problem arises in his treatments of some specific issues, where he departs from the commitment to noninterference.  This generates serious internal inconsistencies in his view.  A striking example is in his treatment of "collaborative reproduction," or what are commonly known as "surrogate mother arrangements." 

Now, Robertson does attempt to articulate his position on the enforcement of these contracts partially in terms of the procreative liberty of women who contract as gestational mothers.  But, on scrutiny, the frame really captures (again) the procreative interests of married heterosexual couples, since he has already indicated that these are the procreative interests that enjoy constitutional protection.  With this in the background, he says:

The procreative liberty of both infertile couples and surrogates would be advanced by upholding preconception agreements for surrogate services.  If the parties have a fundamental consitutional right to use noncoital means of forming families, that right      should include enforcement of preconception surrogate contracts. ...  A failure to enforce preconception agreements to rear could block the only avenue open to infertile couples to have offspring genetically related to one or both rearing partners.  It may also deny women who wish only to gestate opportunities to do so.  Couples who would otherwise engage their services might be reluctant to do so if the couple's legal right to rear cannot be guaranteed in advance (p. 131).

The argument here from the procreative liberty of potential gestational mothers is misleading, at best.  Since Robertson himself allows that poor women are most likely to be drawn into these arrangements because of the money attaching to them (p. 226), and since the procreative interests that are constitutionally protected are those of married couples, the interest at stake for potential gestational mothers is an economic one, which the state can protect in an infinite variety of ways that do not include enforcing these contracts.   The procreative interests of these women are not protected. Insofar as the procreative interests of potential gestational mothers are at stake, enforcing these contracts would systematically sacrifice those interests to the reproductive interests of those contracting a gestational mother.  Thus, Robertson's position here calls for legally enforceable privileging of the procreative interests of those contracting gestational mothers over the procreative interests of gestational mothers in rearing the children they gestate.  Further, if we look carefully at the gestational motherhood cases that have found their way into the courts recently, it is clear that fertile, heterosexual, married, economically advantaged men ended up with what they sought--children genetically related to them--though the ground for final decisions in these cases was not contract.^[4]   Even without the added benefit of the state's enforcing their contracts, the procreative interests of such men have been served by state intervention in these arrangements when gestational mothers have attempted to keep the children they have gestated and birthed.  With the enforcement of these contracts, these women would know in advance that, should it turn out that they have interests in rearing the children they bear and birth, as a matter of law, these interests will have no chance whatever of being protected, or in some cases, even recognized by the state.^[5]  Robertson's treatment of gestational motherhood arrangements, then, involves him in a serious internal inconsistency, since his view quite expressly precludes equal protection of the reproductive interests of all contractors in these arrangements.

IV

Part of the import of the example of Robertson's treatment of "collaborative reproduction" is that it shows that this book needs to be read very carefully.  It is chock full of language that is familiar to contemporary social theorists and, particularly, feminists--language pertaining to viewing issues through lenses; language pertaining to inclusion of the marginalized; language that carefully acknowledges the greater burdens women bear in human reproduction.  But such language too often misleads in this book because it obscures the real implications of Robertson's view for real women, particularly for poor women.  Although most feminists would not make development and individual decisions to use reproductive technologies against the law, most would also want to emphasize how much so many of these technologies contribute, often in extremely subtle ways, to the continuing interlocking systems of sexist, heterosexist, racist, and class oppression in our society.  Insofar as Robertson's position is that people should be free from blatant government interference to seek technological assistance in the reproductive dimensions of our lives, his position is uncontroversial, at least among those who are not associated with positions on the so-called Far Right.  For example, there are few feminists who call for strict legal prohibitions on gestational motherhood arrangements, even if many (or most) oppose the legal enforcement of such arrangements.^[6]  So, insofar as Robertson's position is a noninterference position, it is not terribly controversial and it likely will find significant support even among feminists who find traditional liberalism too conservative of the status quo.  But insofar as Robertson's view fails to place the importance of reproductive liberty of all persons at its center, and insofar as it departs from the noninterference model of freedom to a position that calls for state assistance in systematically protecting the procreativeve interests of some over the procreative interests of others, Robertson's liberal view is internally inconsistent and extremely controversial, and it should be recognized as such, not only by egalitarian, feminist, and communitarian critics of liberal views, but by liberals themselves.

NOTES