In California, an infertility clinic with a policy of artificially inseminating only married women is being sued by a lesbian woman for sexual orientation discrimination. In Indiana, a law was introduced and quickly withdrawn that would have confined the use of artificial reproductive technologies to married couples.
The superficial appeal of the lesbian’s case is that having a baby is a right, from which no one can be excluded, no matter what their marital status. The ill-fated Indiana law was shot down because its opponents appealed to the same intuitive sense, widely felt by Americans, that people have a right to have a baby.
There is some legal precedent for believing that procreation is a fundamental right. The Supreme Court has held (in Skinner v. Oklahoma) that sterilization cannot be used as a criminal penalty because the right to have children is a fundamental right, but this right surely cannot mean that anyone who wants a baby is entitled to a baby, and that someone is required to give them one.
Let me be blunt. There is no right to a child, because a child is not an object to which other people have rights. If that were true, then parents would be owners of their children, rather than their stewards or guardians. The well-being of the child could be, and would be, sacrificed to the ‘rights’ of the parents. If we are born as objects to which other people have rights, when do we become persons with rights of our own, and why would the woman’s right to have a child trump the child’s right to have a father?
We must distinguish between ‘the right to have a child’ in the sense of possession and the ‘right to have a child’ in the sense of procreation. There is one coherent way to imagine a right to procreate. Two people of the opposite sex can come together to conceive a child, without permission from the state or anyone else. People do it all the time.
To put it another way: Every individual is sterile. No one can have a baby by himself. Each human infant has two parents, one male and one female. Therefore, any right to have a child should be held by a couple, not by an individual who wishes to be a parent.
A couple’s right
This right of procreation a married couple holds is, quite literally, a natural right. No one has to help the couple produce the child: they can do that all by themselves. In fact, one of the great problems every society has to solve is discouraging reproduction in certain circumstances, precisely because producing babies is all too easy and natural to do.
Every known society has developed some social institution for defining the appropriate types of reproductive couplings. This universal social institution is, of course, marriage. Nobody grants a married couple the right to make babies; it is inherent in their marriage.
It does not follow that the natural right of a married couple to have babies extends to random couplings of individuals. Nor does the entitlement of married couples to procreate naturally generate a right for anyone to be artificially inseminated. No one, married or otherwise, is entitled to the assistance of others in becoming a parent.
Individuals may appear to have the same procreation rights as married couples. The belief that they do creates the widespread sympathy for the lesbian in the doctors’ conscience case, and the antipathy against the proposed Indiana restriction on artificial reproductive technology. But there is no individual right to have a child, and the state should decline to ‘discover’ or invent one.
Who has a natural right to a child, a right that the state should recognize and support? The most compelling candidate is the child’s pair of biological parents, who have committed themselves to creating a common life together for the sake of their child as well as themselves. In other words, married couples. They may be said to have a right to a child, but no one else.
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