Racial Classification in Assisted Reproduction

Dov Fox, U.S. Court of Appeals for the Ninth Circuit

Abstract

This Essay considers practices that facilitate the race-conscious selection of sperm donors. I consider four ways to manage racial information – race-indifferent, race-sensitive, race-attentive, race-exclusive – and evaluate the social meaning that each approach expresses in decisionmaking frameworks like election ballots, dating websites, and donor catalogs. Ratcheting up racial salience for nonremedial purposes can communicate less acceptable ideas about the role racial considerations should play within the sphere of family formation. I argue that partitioning donor catalogs by race reinforces the view that aspiring parents should select a donor of the same race, and credentializes the assumption that single-race families are preferable to multiracial ones. I develop choice-structuring mechanisms that seek to balance respect for the reproductive privacy, decisional autonomy, and the expression of racial identity with responsibility to work against conditions that divide us.