1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

2. The Right to Procreate

According to the theory of natural selection, nature selects for those characteristics which enhance an organism’s ability to survive in the environment.  Survival is an important threshold, but without procreation, it would have no effect on successive generations – there would be none.  For this reason, procreation is a key to an organism’s success.

In Skinner v. Oklahoma, these evolutionary principles appear to guide constitutional law.  At issue in the Skinner case was an Oklahoma statute which authorized sterilization for any habitual criminal convicted of two or more felonies involving “moral turpitude.”  After a first conviction for stealing chickens, and a second for armed robbery, Oklahoma instituted sterilization proceedings against Mr. Skinner.  Not wanting to give up the right to have children, he challenged the constitutionality of the statute, claiming the right to procreate as a fundamental civil right.  The court agreed with him, describing procreation as “a right which is basic to the perpetuation of a race.”  

Skinner is also about the conflict between the interests of an individual versus those of the group of which he is a part.  There are times when the two are not aligned. The group has an interest in protecting itself against misbehavers, persons who through their actions injure others.  Believing that the propensity to criminal behavior was genetically inherited, the Oklahoma legislature reasoned that, if they barred “habitual criminals” from producing progeny, the number of criminals in the population would diminish.  The statute benefited the population as a whole at the expense of the individual who lost the right to have children.

The clash between individual and group interests is a familiar one to evolutionary biologists.  Since Darwin’s discovery of natural selection, it has been generally accepted that evolution operates on individuals within a population.  Individuals, who act in their self-interest to the detriment of the group, are favored by natural selection.  If you steal resources from your neighbors, and these resources enhance your reproductive potential, while damaging theirs, it is your genes and behavior that become prevalent in the population, while theirs diminish.  Under this theory, cheaters always win.

Certain features of groups of individuals have led biologists to propose that selection can take place on a group level, as well.  According to the group selection theory, there are instances where organisms will regulate their behavior for the good of the group even to their own detriment.  The theory arose from observation that most animal species control their own population densities to avoid depleting their habitat of necessary food resources.  Many species of birds, for example, reduce the number of eggs they produce as the population number in their group grows.  The explanation offered by group selectionists is that adaptations have evolved to restrain individual birds from procreating in order to protect the interests of the population as a whole.  Foregoing reproduction, to keep the population count down, ensures that enough food will be available to feed the existing members of the group.  Animal Dispersion in Relation to Social Behavior, V.C. Wynne-Edwards, Hafner Publishing Company, 1962.  Codes of law enacted by humans were seen analogously – as group adaptations selected to “safeguard the general welfare and survival of society, especially against the antisocial, subversive self-advancement of the individual.”  Wynne-Edwards, ibid, 131.

Although popular during the 1960’s, most evolutionary biologists have now rejected this view, instead believing that seemingly altruistic displays by individuals have a greater hidden benefit than cost.  Rather than seeing the bird’s cutback in the number of offspring it produces as a group adaptation, it could easily be interpreted as the bird acting in its own best interests.  Increased population density means less available food to feed hungry nestlings. Instead of trying to spread out the limited food to feed many hungry mouths, and reduce the viability of her entire brood, the bird decreases her procreation output in half and now has adequate food to feed all of her children.  The Selfish Gene, R. Dawkins, Oxford University Press, 1989 edition, Pages 109-122.

A group selection rule was rejected in Skinner, as well.  Extinguishing the right to procreate in criminally recalcitrant individuals is a “good of the group” rule, promoting group interests, while discouraging antisocial behavior and preventing misbehaving genes from being dispersed into the population gene pool.  An individual who committed a felony lost his right to reproduce in order to benefit the group.  The idea was to purge the “bad” genes from the population.  In overturning this statute, the Court affirmed the right of an individual to reproduce even if it hurt the group by facilitating the spread of seemingly anti-social behaviors.