Right to bodily integrity vs. right to procreative controland in cubators

[David M Wagner]

Hmm.  Assuming, without deciding, that LFG has the "preferences about the
state of the world" that Prof. Tribe attributes to her, how does he know
that these preferences are "untheorized," as opposed, say, to "not recently
theorized on this particular list"?

Along with the foregoing, I'd like to add a note of congratulations to Prof.
Tribe for an outstanding amicus brief in Browner v. American Trucking Ass'n.

David Wagner
Regent University School of Law

  -----Original Message-----
  From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Leslie Goldstein
  Sent: Thursday, September 28, 2000 11:25 PM
  To: CONLAWPROF at listserv.ucla.edu
  Subject: Re: Right to bodily integrity vs. right to procreative controland
in cubators


  I was not aware that I was expressing a preference, but for future
reference "LFG" stand for Leslie F.Goldstein, a female.
  "Laurence H. Tribe" wrote:

     That no states currently outlaw routine destruction of fertilized
zygotes (i.e., embryos) at the behest of either parent tells us less about
the constitutional rights at play than it does about the way practice has
outgrown theory. And that we "do not need scifi here" tells me less about
LFG's theory of constitutional rights than it does about his untheorized
preferences about states of the world. -- Larry Tribe.
      -----Original Message-----
      From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of lesl at UDEL.EDU
      Sent: Thursday, September 28, 2000 1:46 PM
      To: CONLAWPROF at listserv.ucla.edu
      Subject: Re: Right to bodily integrity vs. right to procreative
control and in cubators

      my understanding is that parents of invitro fertilized zygotes/embryos
are routinely permitted to destroy the unneeded/unwanted ones (medical term
/euphemism is "fetal reduction')  I do not know of any states that outlaw
this.  We do not need scifi here.  This is the contemporary world.
      LFG
      Larry Tribe wrote:
        For years now, I've used essentially this laboratory gestation hypo
in advanced con law classes. My tentative answer has been that neither
biological parent should ordinarily (assuming the genetic material was not,
for instance, stolen from either parent) have a right to destroy the fetus
developing in the lab and that, although the interest in avoiding the fact
of having one's child in the world contributes to the strength of the
woman's claimed right to avoid or terminate a pregnancy, that interest is
not itself strong enough, either on her part or on the part of the father,
to convert it into a right vis-a-vis the entity, potential or actual, that
the fetus, separated from the mother, is and will become. -- Larry Tribe.
          -----Original Message-----
          From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
          Sent: Wednesday, September 27, 2000 3:43 PM
          To: CONLAWPROF at listserv.ucla.edu
          Subject: Right to bodily integrity vs. right to procreative
control and in cubators
                  Many science fiction books hypothesize -- in my view,
quite plausibly -- that not so long from now babies can be gestated in
machines rather than in human bodies.  One could imagine the entire process,
conception to birth, being in a machine, or perhaps having the first part of
the gestation (perhaps something that's particularly hard to emulate by a
machine) be in the woman's body and the rest outside.
                  I think this is a sensible thing to speculate about:  This
isn't teleportation or faster than light spaceships or time travel, which
are all things that seem to conflict with basic physical laws; rather, it's
just a matter of advancing technology (recall we already have incubators
that help premature babies develop), and my sense is that such technology
will indeed exist, in a century or two if not in several decades.

                  Hence the question:  Say that a couple creates a fetus in
the incubator, but then at some point one or both of them change their
minds.  (1)  Should they have the constitutional right to destroy the fetus?
(2)  Does the answer to #1 depend on how far along the gestation is, and if
so, what would the line be?  (3)  Would the right belong to both parents, to
either parent, to the woman alone, or to the man alone?

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