Contracting Our Way to Inequality: Race, Reproductive Freedom, and the Quest for the Perfect Child

By Camille Gear Rich. Full Text.

This Article asks a fundamental question: Why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology (ART) market to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed, and sometimes priced based on race. The role these market practices play in naturalizing segregation and promoting racial inequality has been recognized, but curiously there has been no will generated to address this commercial practice head-on. This Article explores the cultural and regulatory impasse that must be overcome to address this racial phenomenon. Part I probes the racial categorization practices currently used in the ART market to provide a better account of what is actually being exchanged when parties purport to sell racially marked ova and sperm. After exploring the high risk of fraud, confusion, and potentially misleading speech, the Article demonstrates how gamete banks’ current racial categorization practices could thrust courts back into discredited, antiquated legal arguments about racial purity and racial fraud. Part II probes customer preference claims about race to determine what it is consumers believe they are buying when they purchase race in the ART market. Close examination of customers’ arguments reveals the residual influence of anti-miscegenation norms, regressive femininity and masculinity constructs, and a desire to outsource the challenges associated with achieving racial equality. Part III asks whether our Fourteenth Amendment racial equality guarantees require government to wholly prohibit ART exchanges based on race, and explores the likely resistance regulators will face based on reproductive freedom concerns. Part III concludes by exploring First Amendment considerations, specifically, whether government speech doctrine allows states to combat regressive ART messages based on race, or whether commercial speech limitations could be used to limit ART marketers’ more destructive race-based messages.