Griswold's Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality
Douglas NeJaime, Griswold's Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality, 124 Yale L.J. F. 340 (2015).
On the fiftieth anniversary of the Supreme Court’s decision in Griswold v. Connecticut, this brief symposium Essay takes cues from a principle at stake in Griswold — that procreative liberty is integral to equality — and shifts the focus to a new form of procreation, namely assisted reproductive technology (ART), and an emergent form of equality, namely sexual orientation equality. With same-sex couples on the verge of nationwide access to marriage, new sites of conflict are emerging. The legitimacy of same-sex family formation is being challenged by some now working to restrict ART. Even as the success of same-sex couples’ legal claim to marriage rests in part on a nonprocreative view of marriage supported specifically by Griswold, LGBT advocates also have articulated a procreative view of marriage tied to same-sex family formation through ART. This latter view, bolstered today by both important state family-law developments and recent same-sex marriage decisions, may ultimately provide the foundation for a reading of Griswold that supports same-sex couples’ procreative rights in the conflicts just beginning to take shape.