Vol. 96

In Defense of Future Children: A Response to Cohen’s Beyond Best Interests

This essay responds to I. Glenn Cohen’s articles, Regulating Reproduction and Beyond Best Interests, by asserting that Cohen’s work fails to attain his goal of fundamentally shifting the terrain upon which discussions about exercising control over reproduction takes place. The response offers four interrelated observations about why Cohen’s work is ultimately unconvincing. First, his work is too deeply tied to the notion of procreation as substantially, and perhaps strictly, a matter of rights and autonomy, which ignores the ways in which such a narrow lens continuously fails to capture the complexities of the enterprise of creating new lives, an enterprise that necessarily involves some consideration of consequences for those who already exist and those who will exist. Second, Cohen’s work takes little account of the fact that actively choosing to have children is a moral choice and, as such, it is subject to condemnation, critique and public scrutiny. Third, if we take Cohen at his word that his piece is about shifting the conversation in the policy realm, his work substantially misses the proverbial boat because broad conversations about reproductive regulation will always be conducted with some notion of the consequences that the exercise of reproductive choice has on the lives of those children who issue as a result of such choices. Fourth, and finally, because of the reality of the prior observation, the real task for those who find BIRC untenable is not to convince others that it is unsound—philosophically or otherwise—but to convince them that their notions of best interest are flawed. Full response here.

Authentic Reproductive Regulation

In this response to I. Glenn Cohen’s article, Regulating Reproduction, Professor Crawford notes the ways in which Professor Cohen’s questioning of “best interests” logic challenges legal scholars to reexamine received wisdom. She then evaluates Professor Cohen’s critique of “best interests” in the context of income taxation of surrogates. Professor Crawford concludes that Professor Cohen’s “unmasking” project—designed to reveal the authentic reasons for reproductive regulation—enhances the discourse about reproductive law and policy. Full response here.


Crawford v. Washington: What Would Justice Thomas Do?

In Crawford v. Washington, the Supreme Court overruled the Ohio v. Roberts “reliability” test for the admission of hearsay statements as against a Confrontation Clause objection in criminal cases. The Court did so in part on the basis that the Roberts test was inherently unpredictable. The Court replaced the Roberts test with a case-by-case analysis of whether the relevant hearsay statements are “testimonial.” But is the Crawford test that the Court articulated more predictable? This essay suggests that it is not, and compares the Court’s analysis with the proposed definition of testimonial hearsay offered by Justice Thomas. Full essay here.


A Response to Professor I. Glenn Cohen’s Regulating Reproduction: The Problem with Best Interests

In this response to Professor I. Glenn Cohen’s article, Regulating Reproduction: The Problem with Best Interests, Professor Alvaré argues that rules restricting reproductive freedom serve an important societal purpose and need not be abandoned simply because they cannot be supported by a “best interests of the resulting child” (“BIRC”) rationale. Professor Alvaré acknowledges that such rules lead to the nonexistence of potential persons and might be misunderstood to suggest that some human lives are “not worth living,” but believes it is possible to avoid sending those undesirable messages without having to accept the extreme conclusion that adults need never constrain their behaviors respecting conception. She suggests that such a result can be achieved by re-conceiving the BIRC rationale as an effort to remind parents—prior to the moment when parenting begins (conception)—of what the law both needs and assumes them to be: fit parents who act in their children’s best interests. The state, Professor Alvaré says, must have some way of expressing to adults that important aspects of a child’s future are established at the moment of conception, and reproductive regulation often serves this important objective. Full response here.


A Response to Appleton and Pollak

This article responds to Exploring the Connections Between Adoption and IVF: Twibling Analyses, by Professors Susan Frelich Appleton and Robert A. Pollak. Professors Cohen and Chen begin by emphasizing several valuable contributions made in Professors Appleton and Pollak’s article. Then, in an effort to crystallize a number of important points, Professors Cohen and Chen note a few instances where they do not completely agree with Professors Appleton and Pollak’s characterization of their earlier arguments. Full reply here.