Sherry F. Colb · September 2009
77 GEO. WASH. L. REV. 1582 (2009)
Ordinarily, consideration of future generations’ interests takes for granted that there will be future generations to have interests. It is, in other words, wrong to despoil the environment or fail to keep the social security system solvent because our children, grandchildren, and their descendants will inhabit this earth and have basic needs that will go unfulfilled if we do not maintain our world in habitable condition. As long as people continue to exist, there are things they will need to survive and thrive, and it is generally understood to be our obligation—as current inhabitants of the planet—to live in a manner consistent with their survival and thriving.
In some sense, we are merely “renting” all that we have, like students who occupy a desk in a classroom, and must accordingly be prepared to “return” it forward in good condition to those who will take our place. If there were to be no future generations, we would have no obligation to leave the planet habitable. The earth would then be a disposable commodity. If we knew that tomorrow at noon, all existing lives would end and never be replaced, we would, by definition, no longer have to preserve anything for future earthlings.
The question we generally do not ask, in considering what we ought to do for our descendants, is this: Must we bring those descendants into existence? That is, do we have an obligation—as a group of human beings or individually—to reproduce? If we have any such obligation, what are its contours? To put the questions in a different frame, do potential people have a cognizable interest in coming into existence in the first place?
This set of questions is crucial to our thinking about reproductive rights in the context of meeting our obligations to future generations. If we do not owe it to potential people to bring them into being, then who can make claims upon us (to preserve the earth, etc.)?
This Article argues that an analysis of reproductive rights in the context of future generations yields three insights. First, potential people (who may or may not come into being) do not—by any prevailing approach to morality—have a right to be created by us. They may therefore be ethically “prevented” from coming into existence with what I call the “Offspring Selection Interest” (“OSI”). Second, the OSI is often conflated with the distinct reproductive rights interest in protecting one’s body against unwanted intrusion, the “Bodily Integrity Interest” (“BII”), with resulting confusion for reproductive rights discourse. And third, once we distinguish the OSI from the BII, we find a surprising amount of agreement, even among present-day abortion opponents, with the premise of abortion rights: that the BII is both weighty and directly implicated in the abortion decision.
To find evidence of consensus regarding the OSI, this Article turns to western religious traditions as well as to modern legal rules. To find consensus on the BII, this Article relies on accounts of abortion that animate the pro-choice and pro-life communities within the United States. The goal of the Article is largely descriptive rather than normative: it aims to identify two interests that underlie modern reproductive rights and to demonstrate that both interests are widely accepted by groups that otherwise appear to fall on opposite ends of the reproductive rights spectrum.
