Griswold's Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality


Douglas NeJaime


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.

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