Liberalism and the limits of procreative liberty: a response to my critics.

Children of Choice(1) is an argument for the primacy of procreative liberty in determining public policy for new reproductive technologies. It argues that the strong commitment to procreative liberty that exists in law, morality, and social practice entails an equally strong commitment to liberty in the use of new reproductive technologies. It then traces the implications of such an approach for seven controversial reproductive technologies, including the use of noncoital means of conception.The commentators in this Symposium take issue with giving procreative liberty center stage. They deny that reproductive choices involving assisted reproduction have or should have any special priority. In addition, they find that the use of these techniques causes a variety of harms that outweigh their claimed status as rights. As a result, the commentators would severely restrict or prohibit many uses of reproductive technology that I claim are an individual's or a couple's right.(2)In my view, the commentators have not made a convincing case against the rights-based approach of Children of Choice. In some instances, they have simply misunderstood the argument. In others, they have failed to grasp the extent to which a rights-based approach is consistent with regulatory policies that would prevent the harms which they fear. Sometimes, the commentators are unwilling to acknowledge the implications of a previously granted premise, or they simply disagree about a normative or policy matter over which reasonable persons may differ.(3)In their zeal to show the excesses of a rights-based approach to reproductive matters, the commentators also miss a large area of agreement. Although arguing for the primacy of procreative liberty, Children of Choice never claimed that such an approach is the sole relevant perspective on these techniques. Children of Choice explicitly recognized the insights that other perspectives might bring and thus left ample room for grappling with the questions of caring, trust, and mutual concern that arise with use of reproductive technologies. But these questions take center stage only after we have recognized the crucial role that rights play. Rights in reproduction are not everything, but we cannot do without them, even as we struggle with questions about their scope and best use.In order to show why rights discourse is necessary but not sufficient to encompass reproductive technology, I address the arguments of the commentators under three headings. Each writer raises questions about the scope and derivation of a right of procreative liberty, about the harms that justify overriding that liberty, and about the extent to which the state should discourage or facilitate its use. Such common issues are no accident, for they reflect the normative choices and trade-offs that the liberal rights analysis of Children of Choice entails.I. Scope and Derivation of Procreative RightsSeveral commentators criticize both the importance and the scope that I give to procreative choice. They challenge my claim that procreative liberty is a fundamental right and my conclusion that respect for coital conception strongly implies that noncoital reproduction is also protected.Both Professor Gilbert Meilaender and Professor Laura Purdy assume that I derive the right to procreate from the existence of the right to avoid procreation,(4) but this assumption is inaccurate. Although engaging in and avoiding procreation are two central aspects of procreative liberty, each aspect "stands on its own bottom."(5) Each is supported by a separate set of interests connected with quite separate experiences of engaging in or avoiding reproduction, and each has implications for different sets of technologies--Norplant and RU486 have little in common with egg donation and micromanipulation of gametes.(6)This point matters only because it directs our attention to the reasons for giving priority to both aspects of procreative liberty. …