A Response to Professor I. Glenn Cohen’s Regulating Reproduction: The Problem with Best Interests

In this response to Professor I. Glenn Cohen’s article, Regulating Reproduction: The Problem with Best Interests, Professor Alvaré argues that rules restricting reproductive freedom serve an important societal purpose and need not be abandoned simply because they cannot be supported by a “best interests of the resulting child” (“BIRC”) rationale. Professor Alvaré acknowledges that such rules lead to the nonexistence of potential persons and might be misunderstood to suggest that some human lives are “not worth living,” but believes it is possible to avoid sending those undesirable messages without having to accept the extreme conclusion that adults need never constrain their behaviors respecting conception. She suggests that such a result can be achieved by re-conceiving the BIRC rationale as an effort to remind parents—prior to the moment when parenting begins (conception)—of what the law both needs and assumes them to be: fit parents who act in their children’s best interests. The state, Professor Alvaré says, must have some way of expressing to adults that important aspects of a child’s future are established at the moment of conception, and reproductive regulation often serves this important objective.