Academic journal article Washington and Lee Law Review

Children of Choice: Whose Children? at What Cost?

Academic journal article Washington and Lee Law Review

Children of Choice: Whose Children? at What Cost?

Article excerpt

I. Introduction

In Children of Choice,(1) John Robertson argues for the primacy of procreative liberty in decision-making about reproduction. Procreative liberty is the freedom to decide whether or not to have offspring. The primacy of procreative liberty means that debates about reproduction must be resolved in favor of enhancing reproductive choice unless there is excellent reason to believe that serious harm will result from the decision.

Robertson considers four categories of human activity that fall under the rubric of reproductive choice: (1) avoiding reproduction (contraception and abortion), (2) treating infertility, (3) controlling the quality of offspring, and (4) using reproductive capacity for nonreproductive ends.(2) In each of these categories, Robertson points out six possible ethical problems: (1) interference with nature, (2) respect for prenatal life, (3) welfare of offspring, (4) impact on family, (5) effect on women, and (6) costs, access, and consumer protection.(3)

Given the scope of Robertson's work, this Article must necessarily be selective. Although there may be feminist concerns about his approach to the right to avoid reproduction, what he says with regard to that area is relatively unproblematic, so I will concentrate on other areas. Likewise, although feminists may worry about Robertson's positions on interference with nature, respect for prenatal life, possible impact on families, and costs, access, and consumer protection, I will, for the most part, concentrate here on welfare of offspring and effect on women.

Generally speaking, Robertson concedes that procreative liberty should be limited by the harm. principle;(4) however, in practice, his stringent criteria for harm rules out most restrictions. Robertson's worldview also seems quite individualistic in the sense that procreative liberty is chiefly negative and focuses on noninterference, even if some enabling legislation is assumed. Robertson recognizes that unequal access to costly services is a problem, but he does not press for welfare rights with respect to them.

Feminists will find a good deal to applaud in Children of Choice, but many will also disagree with both his fundamental assumptions and his treatment of specific issues. Although they will approve of Robertson's firm convictions about some aspects of choice, they will question his narrow conception of harm. Most will also be critical of the individualistic streak that runs through his work, as it favors those with more power and disadvantages those who, like white women and people of color, tend to have less. Other more radical writers like Gena Corea, Helen Holmes, Ruth Hubbard, Abby Lippman, and Christine Overall are highly critical of new reproductive arrangements and technologies and, unlike Robertson, believe that the burden of proof about their use should rest on the shoulders of those who recommend them, not those who would limit their use.(5) Thus, they will deny the priority of procreative liberty.

Feminism is not a monolithic position, and I have considerable sympathy for what Robertson has to say. From my somewhat rough-hewn utilitarian perspective, the high value that he places on freedom makes sense, at least when it is coupled with a more broadly conceived harm principle. Although utilitarianism differs in many respects from the classical liberalism in which his view seems rooted, I believe that any plausible version of utilitarianism must recognize how important freedom is for human happiness.

None of this means that Robertson is completely "off the feminist hook," however. My criticisms would alter both the course of his arguments and some of his conclusions; they are offered here as friendly amendments that, I believe, would strengthen his already powerful work. I will focus primarily on assisted reproduction.

II. Procreation and the Self

My most general question about Robertson's views centers on his moral theory. …

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