Implications of the Nonidentity Problem for State Regulation of Reproductive Liberty

Abstract

Many proposed laws regulating the use of reproductive technology will not protect identifiable children from harm but will instead reduce future suffering by changing the identities of the children who are born. Because the “injuries by substitution” caused by these uses of technology are not person-affecting—they have no individual victims—the state’s interest in preventing them might be considered less powerful than its interest in preventing person-affecting harms. This paper argues, however, that the framework of U.S. constitutional democracy does not require that we think of the state’s interest in preventing impersonal injuries by substitution as less than compelling. Accordingly, the fact that such laws (including laws against incest) fail to protect offspring against person-affecting harm is not sufficient to establish that they represent unconstitutional interferences with procreative liberty. Naked “moral” objections to the exercise of a fundamental right will not give the Supreme Court ground to uphold a law, but the fact that the law is closely tied to the prevention of injuries by substitution may and should be enough to do the trick.