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I. Glenn Cohen, Well, What About the Children? Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction (Gruter Institute Squaw Valley Conference 2010: Law, Institutions & Human Behavior, May 15, 2010).

Abstract: Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over age 50 be allowed access to reproductive technologies? Should the state fund abstinence education? One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result (absent state intervention) from these forms of reproduction. This focus on the Best Interests of the Resulting Child (“BIRC”) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention – the protection of the best interests of existing children – visible in areas such as adoption, child custody, and child removal. While, as I document, parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state interventions that seek to influence whether, when, and with whom individuals reproduce, in this Article I show that such justifications are problematic and misleading. Drawing on insights from bioethics and the philosophy of identity relating to Derek Parfit’s “Non-Identity Problem,” I show why this form of justification, at least stated as such, is problematic both as a normative and constitutional matter: Unless the state’s failure to intervene would foist upon the child a “life not worth living” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, I show that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level I also show that this reliance on BIRC justifications is in tension with the implicit recognition of the Non-Identity Problem by courts rejecting wrongful life torts. After demonstrating the unworkability of the BIRC argument as stated, I go on to consider three possible reformulations of the argument that would save it. The first would offer an expansive conception of the category of lives not worth living. The second would try and draw a distinction between what I call perfect and imperfect Non-Identity Problems and suggest BIRC reasoning is only problematic for the perfect cases. The third adapts a framework offered by philosophers for the wrongfulness of creating children with lives worth living that do not rely on BIRC-type reasoning by appealing to non-person-affecting principles and same-number substitutions. I explain why I find none of these approaches persuasive, including by discussing their disturbing implications as to enhancement and eugenics. I also briefly discuss how this analysis bears on the constitutionality of these interventions. Once BIRC justifications and its reformulations are shown to be problematic, it becomes apparent that either these forms of reproductive regulation are unjustified or quite different sorts of justifications must be relied on. I briefly plot three such theories, each of which depends on more controversial ideas, that the label of “best interests” obfuscates.