Chapter 7.A--A Right to Procreate?

Notes: The Right to Procreate

1. The Right to Procreate. For an exploration of the right to procreate as it relates to assisted reproductive technologies and gene selection, see John A. Robertson, Assisting Reproduction, Choosing Genes, and the Scope of Reproductive Freedom, 76 Geo. Wash. L. Rev. 1490 (2009). For a recent article suggesting that the right to procreate be defined narrowly see Carter J. Dillard, Rethinking the Procreative Right, 10 Yale Hum. Rts. & Dev. L.J. 1, 3 (2007).

6. “Private” Coercion. For a recent case involving the right to procreate and prison health care, see Thomas v. Hickman, et al., 2009 U.S. Dist. Lexis 37789 (E.D. Cal., 2009)(prisoner claims 14th Amendment violation of right to procreate, alleging medical procedure resulted in sterilization without consent).

New Problem: The Ashley Treatment

Ashley is a profoundly disabled six year old with the mental capacity of a 3 month old whose parents have asked a Seattle area hospital for surgery to remove her uterus and to prevent breast growth along with hormone treatments to restrain her growth. Should the treatment be provided? With what procedural and substantive protections? See Peter Singer, A Convenient Truth, http://www.nytimes.com/2007/01/26/opinion/26singer.html (discussing the Ashley case and the hospital’s agreement with the parents’ requests).

Ashley’s parents argued that the procedures were in her best interests as she would avoid the discomfort of menstruation and the expected development of large breasts, moreover, her smaller stature would permit the parents to include her more readily in family outings and activities. The parents maintain a website, available at: http://ashleytreatment.spaces.live.com/. A state investigation later concluded that the procedures should not have been done without a court order. Christine Ryan, Revisiting the Legal Standards That Govern Requests to Sterilize Profoundly Incompetent Children: In Light of the “Ashley Treatment,” Is a New Standard Appropriate?, 77 Fordham L. Rev. 287 (2008)(noting investigation report available at http://www.disabilityrightswa.org ). See also Alicia Ouellette, Shaping Parental Authority over Children’s Bodies, 85 Ind. L.J. 955 (2010).

Problem: Chemical or Surgical Castration of Male Sex Offenders

For more on the legal and ethical issues surrounding chemical castration of male sex offenders, see Karen Harrison, Legal and Ethical Issues When Using Antiandrogenic Pharmacotherapy with Sex Offenders, 3 Sexual Offender Treatment (2008), online at http://www.sexual-offender-treatment.org/2-2008_01.html; Catherine Rylyk, Note: Lest We Regress to the Dark Ages: Holding Voluntary Surgical Castration Cruel and Unusual, Even for Child Molesters, 16 Wm. & Mary Bill Rts. J. 1305 (2008); and Lystra Batchoo, Voluntary Surgical Castration of Sex Offenders: Waiving the Eighth Amendment Protection From Cruel and Unusual Punishment, 72 Brook. L. Rev. 689 (2007).