Mixed Race Studies

Racial Classification in Assisted Reproduction

Yale Law Journal
Volume 118, Issue 8 (June 2009)
pages 1844-1898

Dov Fox, Academic Law Research Fellow
Georgetown University Law Center

This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the expressive dimension of wrongful discrimination. Even practices marked by innocent motives and benign effects can give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. Race-based differentiation in voting ballots, dating websites, and donor catalogs helps us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.

Table of Contents

• Introduction
• I. Race and reproduction
  • A. Free Market Sperm Donation
  • B. Race-Conscious Donor Catalogs
• II. the expressive dimension of racial discrimination
  • A. Discriminatory Intent and Discriminatory Effects
  • B. Discriminatory Expression
• III. the moral logic of donor classification
  • A. The Social Meaning of Reproducing Race
  • B. The Architecture of Reproductive Choice
• Conclusion

Introduction

Few choices matter more to us than those we make about the person with whom we will share a life or start a family. When having children involves assisted reproduction, selecting an egg or sperm donor occasions similar gravity. Such decisions typically bring to bear a patchwork of preferences about the particular physique, disposition, or values we find desirable in a romantic or procreative partner. To many, race matters. Just as some people in the search for companionship are looking for a significant other who shares their racial background, many of those who wish to become parents would prefer a child whose racial features resemble their own.

To help those who use donor insemination have a child of a particular race, sperm banks routinely catalog sperm donors on racial grounds. Twenty-three of the twenty-eight sperm banks operating in the United States provide aspiring parents with information about donor skin color, and the largest banks organize sperm donor directories into discrete sections on the basis of race. This practice of race-conscious donor classification invites us to rethink those racial preferences we commonly take for granted within intimate spheres of association. Insofar as race tends to reproduce itself within the family unit, race-conscious donor decisionmaking serves as a promising point of departure from which to ask whether and how our multiracial democracy should seek to preserve or diminish our collective self-identification with racial solidarities.

This Note proceeds in three parts. Part I describes the practice of racial classification by the world’s largest sperm bank. Part II argues that antidiscrimination arguments about bad intentions and bad consequences struggle to make sense of the race-conscious way that sperm banks design donor catalogs and online search functions. This suggests that certain classes of discriminatory behavior require a richer moral vocabulary than traditional frameworks allow. In these cases, we do well to examine what might be called the expressive dimension of wrongful discrimination, which turns on whether a rule or action instantiates public values that characteristically erode worthy forms of social recognition.

Part III works out the social meaning of racial classification in assisted reproduction by reference to similar classifications in the more familiar settings of voting and dating. These analogies help us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. This Part argues that racial classifications marked by innocent motives and benign effects give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive-choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.

Read the entire article here.