Also known as: right of procreation · procreative right · reproductive autonomy
Written by attorneys — see sources below.
A fundamental right protected by the Due Process Clause that encompasses the liberty to decide whether to have biological children without government compulsion such as mandatory sterilization. State action that conditions benefits on surrender of procreative capacity triggers strict scrutiny under both substantive due process and equal protection.
Raphael Rivera, convicted of a nonviolent felony, applies to a state program that restores voting rights only after permanent surgical sterilization. He refuses the procedure and sues, claiming the condition destroys his ability to have children. The court applies strict scrutiny because the right to procreate is fundamental and finds the scheme violates equal protection and substantive due process.
Regina Robinson seeks an abortion at a clinic subject to a state waiting period and spousal notification rule. She argues the requirements burden her decision whether to bear a child. The court recognizes that the right to procreate includes decisional autonomy over reproduction and invalidates the provisions as an undue burden on that liberty.
The Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989, established several requirements governing the performance of abortions within the Commonwealth. The Act required a woman seeking an abortion to provide informed consent after receiving specific information from a physician or counselor at least twenty-four hours before the procedure. It mandated that a minor obtain the informed consent of one parent, subject to a judicial bypass option. It further required a married woman to sign a statement confirming that she had notified her husband of her planned abortion, unless certain exceptions applied. The Act also imposed reporting obligations on facilities providing abortion services and defined a medical emergency exception to the various requirements. Before any of these provisions took effect, the petitioners brought suit in the United States District Court for the Eastern District of Pennsylvania. The petitioners were five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services. They sought declaratory and injunctive relief and challenged each provision as unconstitutional on its face. The District Court entered a preliminary injunction. After conducting a three-day bench trial, the District Court held all the provisions unconstitutional and entered a permanent injunction against their enforcement by Pennsylvania. The Court of Appeals for the Third Circuit affirmed in part and reversed in part. It adopted the District Court's factual findings and legal analysis except with respect to the spousal notification requirement. The Court of Appeals upheld the spousal notification requirement as constitutional and applied the undue burden standard in evaluating the provisions. The Supreme Court granted certiorari to consider the constitutionality of the challenged provisions of the Pennsylvania statute.
View caseRoger Ramirez and his wife contract with a surrogate to carry an embryo created from their gametes. After birth the surrogate claims parental rights. The court upholds the intended parents' claim by recognizing their constitutional right to procreate through assisted reproduction and enforcing the agreement to form their family.
In 1984 Crispina Calvert underwent a hysterectomy that left her ovaries capable of producing eggs. She and her husband Mark desired a child genetically related to both of them. In 1989 Anna Johnson, a licensed vocational nurse who had previously given birth to a daughter, learned of Crispina's situation from a coworker and offered to serve as a surrogate. On January 15, 1990, Mark, Crispina, and Anna signed a written contract providing that an embryo created from Mark's sperm and Crispina's egg would be implanted in Anna, who would carry the child to term and relinquish all parental rights to the Calverts upon birth. In exchange the Calverts agreed to pay Anna $10,000 in installments, with the final payment due six weeks after birth, and to purchase a $200,000 life insurance policy on Anna's life. The zygote was implanted on January 19, 1990, and an ultrasound confirmed Anna's pregnancy less than a month later. During the pregnancy relations between the parties deteriorated. Anna felt the Calverts were not providing sufficient attention or obtaining the required insurance policy in a timely manner. In July 1990 Anna demanded the balance of the payments or she would refuse to relinquish the child. The following month the Calverts filed suit in superior court seeking a declaration that they were the legal parents of the unborn child. Anna filed her own action to be declared the mother, the cases were consolidated, and the parties agreed to the appointment of a guardian ad litem for the child. The child was born on September 19, 1990. Blood samples taken from Anna and the child excluded Anna as the genetic mother. The parties stipulated that Mark and Crispina were the genetic parents. After a trial in October 1990 the superior court ruled that the Calverts were the child's genetic, biological, and natural parents, that Anna had no parental rights, that the surrogacy contract was enforceable, and that Anna was not entitled to visitation. Anna appealed. The Court of Appeal for the Fourth District, Division Three, affirmed the judgment. The Supreme Court of California granted review.
View caseRoberto Reyes, a pregnant public school teacher, faces automatic unpaid leave five months before her due date under district policy. She challenges the rule as interfering with her timing of childbearing. The court holds that the mandatory leave unduly burdens the fundamental right to procreate and violates due process.
In the 1970-1971 school year, Jo Carol LaFleur and Ann Elizabeth Nelson were junior high school teachers employed by the Cleveland, Ohio Board of Education. Each informed her employer that she was pregnant. The Cleveland rule, first adopted in 1952, required every pregnant school teacher to take maternity leave without pay beginning five months before the expected birth of her child. Application for leave was due no later than two weeks prior to the departure date. Neither Mrs. LaFleur nor Mrs. Nelson wished to take an unpaid maternity leave. Each wanted to continue teaching until the end of the school year. Because of the mandatory rule, each was required to leave her job in March 1971. The two women then filed separate suits under 42 U.S.C. § 1983 in the United States District Court for the Northern District of Ohio challenging the constitutionality of the maternity leave rule. The district court tried the cases together and rejected the plaintiffs' arguments at 326 F. Supp. 1208. A divided panel of the United States Court of Appeals for the Sixth Circuit reversed at 465 F. 2d 1184. Susan Cohen was employed by the School Board of Chesterfield County, Virginia. That school board's maternity leave regulation requires that a pregnant teacher leave work at least four months prior to the expected birth of her child. Written notice must be given to the school board at least six months prior to the expected birth date. Mrs. Cohen informed the Chesterfield County School Board in November 1970 that she was pregnant and expected the birth of her child about April 28, 1971. She initially requested permission to continue teaching until April 1, 1971. She later suggested she be allowed to teach until January 21, 1971, the end of the first school semester. The school board rejected both requests and required her to leave her teaching job on December 18, 1970. She subsequently filed suit under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Virginia. The district court held that the school board regulation violates the Equal Protection Clause at 326 F. Supp. 1159. A divided panel of the Fourth Circuit affirmed. On rehearing en banc the Court of Appeals upheld the constitutionality of the challenged regulation in a 4-3 decision at 474 F. 2d 395. The Supreme Court granted certiorari in both cases at 411 U. S. 947 to resolve the conflict between the Courts of Appeals regarding the constitutionality of such mandatory maternity leave rules for public school teachers.
View caseRebecca Ross, a low-income patient, seeks an abortion at a public hospital subject to restrictive rules on procedures and physician qualifications. She argues the rules effectively block access to reproductive choice. The court finds the regulations violate the right to procreate by imposing unjustified obstacles to the decision whether to bear a child.
Mary Doe, a 22-year-old married Georgia resident who was nine weeks pregnant when the complaint was filed, joined twenty-three other individuals and two nonprofit corporations in filing this federal action in the Northern District of Georgia against the state attorney general, the Fulton County district attorney, and the Atlanta chief of police. The plaintiffs sought declaratory and injunctive relief against enforcement of Ga. Code Ann. §§ 26-1201 to 26-1203, which made abortion a felony except when a licensed physician determined in his best clinical judgment that continuation of the pregnancy would endanger the woman's life or seriously and permanently injure her health, that the fetus would likely be born with a grave permanent defect, or that the pregnancy resulted from forcible or statutory rape, and only after satisfying multiple procedural conditions including advance written request, hospital committee approval, performance in an accredited licensed hospital, and Georgia residency. Doe alleged that she had three children already placed in foster care or for adoption, had been a patient at the state mental hospital, lived in poverty with her reconciled husband who worked only sporadically, and had been advised by her physician that an abortion would be safer for her health than carrying the pregnancy to term, yet her application to the Grady Memorial Hospital abortion committee was denied because her situation did not fit the statutory exceptions. A three-judge district court tried the case on the pleadings and interrogatories, held that only Doe presented a justiciable controversy, invalidated the limitations on reasons for abortion and the residency requirement, upheld the hospital and committee requirements, granted declaratory relief, and denied injunctive relief; both sides appealed and the Supreme Court postponed probable jurisdiction.
View caseRonald Reed challenges a state Medicaid rule that funds childbirth but not abortion for indigent women. He contends the distinction burdens the right to decide whether to procreate. The court upholds the funding scheme, holding that the state need not subsidize the exercise of the fundamental right even though it may not directly prohibit it.
In 1975, the Connecticut Welfare Department regulation restricted Medicaid payments for first trimester abortions to those certified as medically necessary by the attending physician, a term that included psychiatric necessity, and required prior authorization from the Department of Social Services along with a written request from the patient or, for a minor, a parent or guardian. Appellant Maher, the Commissioner of Social Services of Connecticut, enforced the limitation through this system of certificates and approvals. Appellees Poe, a sixteen-year-old high school junior who had obtained an abortion for which the hospital later sought reimbursement of $244, and Roe, an unwed mother of three unable to obtain the required certificate, filed suit in the United States District Court for the District of Connecticut on behalf of themselves and a certified class of indigent women unable to secure Medicaid assistance for abortions because of the regulation. The complaint challenged the regulation as inconsistent with Title XIX of the Social Security Act and as violative of Fourteenth Amendment due process and equal protection guarantees. The district court initially held that Title XIX required state funding of nontherapeutic abortions. The Court of Appeals for the Second Circuit reversed that statutory ruling, holding that the Act permitted but did not require such funding, and remanded for consideration of the constitutional issues. On remand a three-judge district court was convened; it invalidated the regulation and enjoined enforcement of the medical necessity certificate requirement as well as the related prior written request and authorization procedures. The Supreme Court noted probable jurisdiction to review the constitutional validity of the Connecticut regulation.
View caseNo. When a state conditions sentence reductions, voting restoration, or occupational licenses on permanent sterilization, the choice is effectively coercive for those seeking the benefit. Courts apply strict scrutiny because the right to procreate is fundamental, and the voluntary label does not cure the burden on a discrete class of offenders.
Supporting sources
Strict scrutiny applies. The state must prove the scheme is necessary to a compelling interest and narrowly tailored. Conditioning benefits on permanent loss of procreative capacity fails this test because less restrictive alternatives exist and the classification among offenders is arbitrary.
Supporting sources
No. The right extends to assisted reproductive technologies such as IVF and surrogacy. Courts enforce agreements that allow intended parents to form families through these methods because the liberty interest in procreation includes the use of modern medical procedures.
Supporting sources
Yes. The Constitution does not require the state to subsidize the exercise of a fundamental right. A funding distinction that withholds public money for abortion but pays for childbirth does not directly prohibit procreative choice and therefore survives constitutional challenge.