Mary Ziegler

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This Article offers the first legal history of men’s procreative rights, filling a gap in scholarship on assisted reproduction, constitutional law, and social movements. A rich literature addresses women’s procreative rights in contexts from abortion to infertility. By comparison, we know relatively little about the history of the debate about reproductive rights for men. This void is particularly troubling at a time when the law of reproductive rights is increasingly up for grabs, especially in the context of assisted reproduction technologies (ART). Men’s rights advocates—and the abortion-rights supporters responding to them—championed a jurisprudential approach to parenting that casts a long shadow today. Men’s rights advocates insisted that procreative rights should depend largely on the individual’s reasons for wanting (or not wanting) children rather than on sex, biology, or gestation. Abortion-rights supporters largely countered these arguments by pointing to the emotional challenges, physical discomfort, and medical risk associated with pregnancy—an experience that men could not share. To resolve this conflict, the Court struck a compromise. In cases where gestation is not a tiebreaker, judges focus on individuals’ reasons for seeking or avoiding parenting. This compromise still influences the law of ART and abortion. This history helps to make sense of the dual system of reproductive rights that has emerged in recent years. While the courts adjudicate cases on abortion and assisted reproduction, these bodies of law seem to operate largely independently from one another. This Article offers a radically different picture of the relationship between these bodies of law, showing that they have been inextricably linked. This Article further exposes the dark side of individualized approaches to reproductive rights like the ones taken by courts in ART cases. While these approaches promise to move beyond generalizations about gender, abortion foes championed such a strategy explicitly because it reinforced gender and class-based assumptions about what counted as a good or bad reason for seeking or avoiding parenthood. In the abortion context, the Court should clarify the variables (and their relative weight) relevant to balancing. In the ART context, states should introduce legislation to encourage parties to contract meaningfully about reproduction.