Does the U.S. Constitution Allow Government To Limit the Use of Assisted Reproduction Technologies to Married Couples?

By SHERRY F. COLB

Wednesday, Oct. 19, 2005

Two weeks ago, the State of Indiana was on its way to considering astatute that would have confined the use of assisted reproduction to married couples. Sponsored by State Senator Patricia Miller of Indianapolis, the law would have requiredpeople who wished to utilize assisted reproductionto obtain licensing, and would have denied suchlicensing to unmarried people. In addition,criminal penalties would have followed for the "unlicensed" reproducer.

Miller withdrew the bill after a firestorm of controversy. Yet this law, or one like it, might well reappear soon, in Indiana or elsewhere.

The proposed bill raises important and novel questions about what the Constitution has to say about the use of new technologies in procreation.

What Is Assisted Reproduction?

What exactlyis atstake when the government regulates "assisted reproduction"?

For the proposed Indiana law,"assisted reproduction"referred to hi-tech methods of procreating, such as intra-uterine insemination, in vitro fertilization, egg donation,and intracytoplasmic sperm injection.

What unifies all of these techniques isthat they allow for the conception of children without sexual intercourse. Users of the technology could therefore become parents without genetically contributing to their child's existence.

Who Would Suffer If Such a Law Were to Pass?

Under the proposed law, a person would have had to be part of a married couple to qualify for a license to use assisted reproduction.

The people most likely to suffer the consequences of such a law would therefore have been single people who wished to conceive children on their own, and lesbian and gay couples who wanted to have children biologically related to at least one member of the couple.

How might this group of individuals have gone about challenging the constitutionality of such a law?

The Rights to Contraception, Abortion, and Avoiding Sterilization

The Supreme Court has longprotectedan individual's right to decide not to have children, under the rubric of substantive due process "privacy". This right includes contraception and, with various caveats, abortion as well. The Court has also prohibited the use of sterilization as a criminal punishment for some, but not all, criminals.

How do the cases announcing these principles bear on the proposed Indiana law?

First, the Court has developed the right not to procreate as a fundamental entitlement of every person to decide whether or not to bearor beget children. Because having children is such an important and life-altering undertaking, the Court has said, the government must not interfere with a person's privacy in this realm.

The actual cases, in their factual settings, protected the decision not to have children. However, the Court's recognition of a right to choose whether or not to procreate necessarilyprecludes government interference with the private decision to procreate as well as not to. If one can have an abortion without government interference, in other words, then one can presumably take a pregnancy to term without government penalty as well.

Second, in Skinner v. Oklahoma, the Court grappled moredirectly with the right to have (rather than not to have) children. In Skinner, a majority invalidated a provision of Oklahoma lawthat allowed sterilization as a penalty for some, but not other, criminal offenses. Though the case involved a Fourteenth Amendment Equal Protection challenge to the legislation at issue, the reason that the Court applied as exacting a test as it did in evaluating the law, is thatthe Justicesdeemed the interest implicated by the sterilization penalty - in being able to have children - a fundamental one.

It followed accordingly that denying the interest in procreating to some but not all convicts would trigger what would now be called the fundamental rights prong of "Equal Protection strict scrutiny." And when a fundamental right is at stake, the government may not discriminate in denying it, unless such discrimination is necessary to a compelling government interest.

The Court has subsequently cited Skinner for its recognition that procreation is a fundamental right.

There is thus a history in this country of recognizingthat people have the right to have children. But does that right extend to unmarried people? Other Supreme Court precedents indicate that the answer is yes.

Unmarried People HaveThe Right to Decide Whether to Have Children

In Eisenstadt v. Baird, the Supreme Court held that just as married couples have the right to use contraception, recognized in Griswold v. Connecticut, single people have that right as well, as a matter of equality. Again, because the analysis behind access to contraception involves a general right to decide whether or not to have children, rather than simply to avoid having children, this extension to unmarried people of the privacy right to prevent pregnancy would appear to entail a right not to prevent pregnancy (i.e. to pursue pregnancy) as well.

In Skinner v. Oklahoma, moreover, the Court gave no suggestion that the unacceptability of the sterilization penalty depended on the target's present or future marital status.

Thus, we have several indications that every person has the right to have children, and that the decision not to marry does nothing to alter that right. But what about when the person intends to have children in an unconventional way?

The Constitutional Status of Assisted Reproduction

The proposed Indiana law would have regulated assisted but not "unassisted" reproduction. Therefore, if two people -- regardless of marital status -- had sex with each other, and a pregnancy resulted, Indiana would not have required any speciallicensing of the parents. Rather, it is only if a couplewere unable or unwilling to conceive a child in the usual way that the proposed Indiana law might have applied . Only people who wished to go to a fertility clinic to reproduce, in other words, might have had to contend with the proposed Indiana statute.

Should that fact make a difference in our assessment of the validity of the legislation under consideration? Perhaps.

All of the older cases protecting the right to control one's reproductive life involved reproduction through sexual intercourse, in which the intended parents were also the genetic parents of the resulting child. A court could therefore find that once a third party - that is, the genetic parent who contributes sperm or eggs -- is involved in the process, regulationbecomes acceptable and appropriate.

Furthermore, one could read precedents permitting the denial of Medicaid funding for abortionas drawing a legal line between exercising rights on one's own, and exercising rights with assistance.

The problem with drawing the line between assisted and unassisted reproduction, however, is that contraception and abortion also involve third parties. Among the parties who brought the case of Griswold v. Connecticut to the Supreme Court, in fact, were people who distributed contraceptives to others and were worried about the law criminalizing that distribution. If couples are to have protected access to contraception, the Court held, then the government may not prohibit their distribution or use.

When the Court protects abortion, moreover, it often does so against laws that target doctors and other providers rather than the women whose right it is to terminate their pregnancies. To protect the right to abortion, then, is to permit third parties to assist in its exercise, without legal sanction. Though the government may not need to subsidize abortions (or, for that matter, assisted reproduction), it would appear not to follow that the government may bar third parties from providing that subsidy or from otherwise acting as facilitators.

Adoption and Assisted Reproduction

One area that might have provided the precedent that Indiana needed for regulating assisted reproduction is, ironically, its lo-tech alternative - adoption. When people have a difficult time conceiving a child in the privacy of their own home, they often consider two potential routes to parenthood: utilizing the services of a fertility clinic, and adopting. When a couple or a single person decides to adopt a child, the government typically plays a role in regulating and approving the process, a role quite similar to that set out for intending parents in the Indiana proposed statute. [http://www.in.gov/legislative/interim/committee/prelim/HFCO04.pdf]

Before being able to adopt, a prospective parent must satisfy a social worker or other government official that he or she will provide a good home for the child to be adopted, a home that might include a specified amount of space and worldly possessions. Unlike a couple conceiving a child through intercourse - presumed fit unless and until proven otherwise --the adopting parent thus operates under a de facto presumption of unfitness that he or she must overcomebefore legally becoming a parent.

Many have asked why those who adopt a child should have to confront such challenges, when their biological counterparts do not. The reason, whether compelling or not,is thatpeople tend to view the entitlement of parents to the children they conceive"naturally"as fundamental andsacred, quite independently of what the law happens to say.The law, then, is understood to recognize what is prior to the law - that a biological mother and father are entitled to have and to raise their child.

Adoption, by contrast, involves the placement of an orphan into one home rather than another. The family that wishes to adopt, therefore, has no greater entitlement to a particular, biologically unrelated child, than another hopeful family does. The government may therefore, in loco parentis, decide who does and does not qualify for the privilege of adopting a child who might otherwise find a home elsewhere. One's potential shortcomings as a parent -- though not relevant for a biological mother or father -- may legitimately register with the government when it is choosing, at least in theory,between a variety of possible placements.

Does assisted reproduction work in the same way?

That is ultimately the question that the proposed Indiana law squarely presented. When a child's parentage is unclear, the government may step in and assign status. This means, in the case of adoption, that John and Jane Doe are not constitutionally entitled to become Lucy's mother and father, and their ability to do so successfully is a privilege rather than a right.

In assisted reproduction too, parentage -- as we ordinarily conceive of it -- is subject to debate. While a biological mother is ordinarily both an "egg donor" and a gestational parent, arrangements such as gestational surrogacy and third-party egg donation call that confluence into question, as an earlier column of mine discussed. Similarly, though a father is usuallythe same person as the "sperm donor," the practices of intrauterine insemination and in vitro fertilization permit departure from that model as well.

This is where, perhaps, the government may step in. Once people disaggregate pregnancy from the contribution of an egg, or insemination from fatherhood, the government can say who the "real" mother or "real" father is. And Indiana could thus say that if a person using assisted reproduction wanted to ensure that he or she would be the legal parent, the only way to do so would be through government authorization.

Without a license, a person might risk criminal penalties and the loss of her child to a government-designated parent, just as she would do by taking custody of a child without formal adoption approval and authorization.

Some Burdens Might Be Sensible

It is difficult to argue that when a variety of people claim (or could claim) parentage, the government should have nothing to say about resolving the conflict. After all, when a child is at issue, a purely contractual resolution of her family situation -- based on the wishes of the adults at the time of conception -- might not be inthechild'sbest interests.

Once it is possible for several people to say "he is not the parent; I am," it thus seems appropriate for society to intervene and find the right home for the sought-after child. Even if each party agrees at the outset to give the child to the intended parent or parents, moreover, the potential for disputes may justify government regulation of some sort.

IrrationalDiscrimination

The questionfor Indiana, however, was whether the decision to discriminate absolutely in favor of married couples and against singles and unmarried (typically gay or lesbian) couples when resolving parental disputes comported with the Constitution. The answer to that question is, and ought to be, no.

The Constitution does not allow for arbitrary discrimination. Though married couples may, on the whole, make very good parents, they often do not. More importantly, for our purposes, single and gay and lesbian parents often do an excellent job of parenting. And the proposed statute did not simply say that marital status is a permissible factor in the government's deciding whether to issue parental status to a particular person taking advantage of assisted reproduction. It said instead that any unmarried individual who used assisted reproduction to create a child would bea criminal, not legally protected in his or her status as parent.

Such a statement is utterly irrational and accordingly violates the Equal Protection Clause of the Fourteenth Amendment. As the Supreme Court said in Romer v. Evans and Lawrence v. Texas, the government may not take a group of people and place them and their family lives outside the protection of the law.

The increasing number of single individuals and gay and lesbian couples who have made nurturing and happy homes for their children is testament to thefoolishness of the assumptions underlying Indiana's proposed legislation.

Less a Matter of Procreation than of Equality

Whether through adoption or through the use of reproductive technologies, it has for some time beenpossible for people to become parents without having sex with co-parents. In response to this possibility, the law will predictably speak, because one's status as mother or father might otherwise be contested.

The law could possibly say, in answer to our "Brave New World,"that reproductive technologies such as in vitro fertilization are undesirable and therefore illegal. To support such a position, one could point out that the world is sufficiently populated without extra babies,that medical resources might be better directed at treating and curing illness, and that until everychild has a home that he can call his own, assisted reproduction -- as a direct competitor -- could be harmful to orphans, existing children to whom the government has an obligation.

But the proposed Indiana law did not stand for these rational arguments. Itembraced instead a bigoted vision of the ideal venue for child-rearing -- however under- inclusive -- to govern the lives of its population.

In such a case, the greater power to prohibit the use of technology altogether should not include the lesser power to dictate by fiat which kinds of families can and cannot take advantageof it. In this sense, the right against discrimination in the freedom to form families may be more important than the right to use assisted reproductive technologies to form them. It is therefore fortunate that its sponsor withdrew the Indiana bill under consideration, and we can only hope that similar legislation does not emerge elsewhere any time soon.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns about reproduction and other subjects may be found in the archive of her work on this site.

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