Procreative Pluralism

This article offers a modern approach to evaluating the right to non-coital reproduction that centers on the concept of procreative pluralism. Using lessons taught by reproductive justice scholars and advocates, the article reframes reproductive autonomy and reproductive equality so as to avoid the pitfalls of each and offers a justice account of why constitutional protection of assisted reproduction is critical. The article argues that the fundamental right to procreate as protected by the Constitution includes a fundamental right to use assisted reproduction. Unlike other scholarship, the article rejects the basis of this right as liberty/autonomy or equality standing alone and posits that a justice framework is best for protecting and balancing the procreative interests at play when people use assisted reproduction. Given the fundamental rights argument, the article argues that justice requires extensive protection of the right to procreate and exacting scrutiny of legislative attempts to interfere with that right. It goes beyond other scholars who have made this claim by also determining that the state may have positive obligations to provide some people with access to assisted reproduction services. To reconcile the importance of the procreative right with the compelling nature of state interests in procreation, the article offers a two-tiered system of constitutional review of the fundamental right to noncoital procreation in which those who wish to procreate and parent receive greater protection than those who wish to procreate for profit. Finally, the article articulates principles for regulation based on the structure of a two-tiered right and offers ideas for how to reconcile the fundamental rights analysis with legitimate justice concerns about potential harms to individuals and society fromthe use of assisted reproduction