The question of harvesting sperm from recently-deceased sons and fiances pops up in the news from time to time. The courts seem easily persuaded that the dead man would have wanted to father children after his death on the word of the prospective mother – or grandmother. But what does the future hold in this shadow world of reproductive rights? Does a man have a right to refuse to allow his sperm to be used to procreate after he has shuffled off this mortal coil? I. Glenn Cohen, of Harvard Law School, argues in the Stanford Law Review that the US Constitution does not protect a right not to procreate.

Cohen’s reasoning also covers frozen embryos which have been stored and become the subject of disputes between the partners over whether they should be thawed and transferred to a womb. He distinguishes between the right not to be a genetic parent, the right not to be a legal parent, and the right not to be a gestational parent. The constitution clearly protects the right not to be a gestational parent – a woman cannot be forced to bear a child. However, he says, the right not to be a genetic parent cannot be guaranteed. "I see nothing to suggest that as a constitutional matter an individual should be unable to waive an alleged constitutional right not to be a genetic parent the way she [or he] can waive many of her [or his] other rights."