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Excerpted From: Dov Fox, Reproducing Race in an Era of Reckoning, 105 Minnesota Law Review Headnotes 233 (Spring, 2021) (87 Footnotes) (Full Document)


DovFoxBoth Ortiz and Williams had trouble finding a donor of color because they are hard to come by. Most of the men who sperm banks pay to provide samples identify as Caucasian. The people who are able and willing to try to become parents this way are by and large themselves white, like Jennifer Cramblett and her partner. The couple picked a white donor in hopes of having a white child. The girl Cramblett gave birth to appeared “mixed race.” A donor switch left them to confront disadvantages in housing and education that the couple hadn't encountered, or ever anticipated for the family they made. Their case has driven a wave of legal scholarship and critical theory to ask whether racial matching in assisted reproduction is troubling, and whether that practice should be limited, even banned.

The most comprehensive and commanding such argument comes from Professor Camille Gear Rich. Her influential article argues that markets in assisted reproduction reflect the systematic injustices behind how ideas of (donor) race have been constructed. But that's not all, according to Rich. The race-conscious promotion of egg and sperm also shapes how that racial construction takes form, and what social meaning it carries. Specifically, she claims the disclosure of donor race in egg and sperm catalogs props up two badly misguided ideas about race--both of them as false as they are pernicious. The first of these ideas is that race is inscribed in our DNA, as something you can control through the race of the donor you pick. Second is that donors of color have less value than their white counterparts. To be clear, the agencies and labs that recruit and broker these donors don't assign racial groups to any explicit reproductive hierarchy: They don't charge higher prices for sperm from donors of some preferred race, for example, or store their samples in gold-colored vials as opposed to silver used for others groups. What Rich objects to is instead the packaging of race through promotional materials and drop-down menus that she says advertise idealized whiteness to all-white families.

Rich builds on a growing school of academic philosophy and law that lays bare the push-and-pull between reproductive markets and structural racism. These negotiations should give us pause when they operate to instantiate the divisive assumption that multiracial families are less desirable than single-race ones. But an element of Rich's argument troubles me. My concern lies in its unexamined implication that people who need help reproducing are looking for something different--more finicky, even racist-- than the same forms of intimacy (or otherwise) that parents generally hope to share with their kids. Rich wouldn't forbid people from choosing a donor with an eye to race. But her censure of race-consciousness in this larger sphere is reserved only for people who turn to assisted reproduction. That singular focus has the effect of demeaning LGBTQ, single, and infertile people--some of whom identify as racial or ethnic minorities. Concentrating racially charged condemnation on these individuals and couples diminishes their parental dreams by treating them as if preoccupied with race, even conditioned on it. It also suggests that those who reproduce without such assistance don't themselves think about and act on race in similar ways in their own choices about forming a family. Neither idea is true, and both stigmatize. Expressive harms aren't the only one incurred by imposing special sanctions on access to ART. There is also the practical harm of further restricting the ability to make babies for the very people whose struggle to conceive or gestate already places them at a reproductive disadvantage.

[. . .]

Again, I'd apply these modest corrective measures in other spheres of family formation as well. The vice of racial salience isn't so great that it warrants policies to suppress the disclosure of donor race. Some types of discrimination are so bad that not even private actors should engage in them. That's why racial discrimination in most private housing or employment, while permitted by the Constitution, is statutorily prohibited. But in most spheres of life, no law or policy limits the extent to which private citizens can choose the people with whom they trade, befriend, or live. The race-conscious design of donor catalogs and vendor marketing invites us to rethink the social meaning and practical impact of racial preferences in family formation more broadly; whether the state has a responsibility to remedy any attending harms; and whether it can do so without unduly damaging the values of autonomy, pluralism, and intimacy that flourish in cherished relationships between parents and children. That race tends to reproduce itself within the family structure makes this a critical domain of life from which to ask what sort of racial self-understandings our multiracial democracy should seek to embody. This interrogation is a hard one whose contours can and should evolve in light of new circumstances and social mores about race, reproduction, and family life in the United States. This larger inquiry is enduring and complicated. But it goes awry when it singles out certain individuals and couples--those who need extra help in having a kid--for wanting the same kinds of special relationships as everyone else.

Professor of Law and Herzog Endowed Scholar, University of San Diego School of Law.

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