Annals of Health Law
THE CURIOUS CASE OF TRENT ARSENAULT
a person as the decision whether to bear or beget a child.” 166
The courts have, if anything, continued to respect and, indeed, broaden
privacy rights’ umbrella of protection over procreative liberty. The well-known case of Roe v. Wade established that the right of privacy included
the right of a woman to choose whether to have an abortion prior to fetal
viability. 167 In another contraception case, Carey v. Population Services
International, 168 the Court stated that “access to contraceptives is essential
to exercise of the constitutionally protected right of deciding matters of
childbearing that is the underlying foundation of the holdings in Griswold,
Eisenstadt, and Roe.” 169 Even as the scope of abortion rights was qualified
by subsequent cases, the Court was careful to note that “subsequent
constitutional developments have neither disturbed, nor do they threaten to
diminish, the scope of recognized protection accorded to the liberty relating
to intimate relationships, the family, and decisions about whether or not to
beget or bear a child.” 170
Substantive due process, via the rights to privacy and individual
autonomy, extends to protect those important decisions even when they
involve traditionally non-procreative relationships or nontraditional
procreative acts. 171 As one scholar noted during the early days of ART,
A court interpreting the procreative rights of married persons as
extending to noncoital or collaborative reproduction cannot
reasonably be accused of reading its own values into the due
process clause; it is merely recognizing the logical extension of a
166. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (protecting the right of unmarried
persons to possess contraceptives). Of course, CBER’s position is that governmental
intrusion is warranted where the biological father seeks only to donate his gametes for the
purpose of facilitating the reproductive aspirations of a couple incapable of conceiving
otherwise, and where those gametes are not conveyed via natural insemination.
167. Roe v. Wade, 410 U.S. 113, 163-64 (1973).
168. Carey v. Population Servs. Int’l, 431 U.S. 678 (1977).
169. Lampert, supra note 165, at 256 (citing Carey, 431 U.S. at 685). See also Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992) (citing Carey, 431 U.S.
at 685) (“Our law affords constitutional protection to personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and education.”).
170. Casey, 505 U.S. 833, 857 (1992).
171. See John Robertson, Procreative Liberty in the Era of Genomics, 29 AM. J. L. AND
MED. 439, 446-50 (2003). (“[T]here may be intense debate about whether something is
central or material to reproduction and thus properly regarded as part of, or an aspect of,
procreative liberty, just as there is sharp debate about the seriousness and risk of resulting
harms. . . . All such arguments, it seems, relate to how essential or material those activities
are to the values that underlay the importance to individuals of their decision to avoid or
engage in reproduction. While people may disagree over the precise limits, the argument, if
properly focused, should be about the closeness of the activity in question to the values that
support freedom in reproductive decision-making and whether the effects on others of
exercising that freedom justify limiting it.”) Id. at 449.