‘Male and Female He Created Them’: Procreative liberty, its conceptual deficiencies and the legal right to access fertility care of males

Abstract

In recent years, assisted reproductive technologies have played an important role in shaping the lives of many individuals throughout the world. Their promise to make people become parents is believed to fulfil the most elementary interests a person may have. It is argued and legally acknowledged that such interests constitute with much significance a person's self-identity and sense of belonging to the living society, also constituting her reproductive liberty or the right to procreate. Despite their significance and importance, access to these technologies and to fertility care specifically may not always accord with the principle of equality and justice. It will be argued that, in some cases, such unequal access reflects various forms of discrimination between different groups in society. It is the purpose of this article to show that such a phenomenon is the result of an underdeveloped and unregulated area of law, characterising many Western countries. Specifically, it demonstrates conceptual deficiencies in so-called ‘procreative liberty’ with regard to the content and scope of the right to procreate, the values underlying such a right, and the legal and social institutions supporting and securing it. The article highlights these deficiencies, making them more evident when the notion of ‘reproductive liberty’ applies to positive and modern attempts to become parents, especially but not exclusively those brought by men.

And When I Die: Theory of Planned Behavior as Applied to Sperm Cryopreservation

“…The right to procreate is surrounded by ambiguity as reflected in its content and scope, the values on which such a right is based, and the legal and social frameworks guaranteeing this right, despite the fact that the right to procreate has been recognized in case law. Such ambiguity compounds the difficulties associated usually with the discourse on rights, and in particular, the law’s intervening in bioethical issues, through the language of rights [ 66 , 67 ]. Pearson [ 68 ] shows that there is controversy over whether the right to procreate is positive, such that individuals can require others to support their reproduction process, or if it is negative, so that it only mandates that others do not interfere in their reproductive choices.…”