Choosing Your Child’s Race

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

Abstract

This lecture, adapted from an essay in the Yale Law Journal, distinguishes four ways in which decisionmaking frameworks can manage racial information. I call these salience-varying approaches race-indifference, race-sensitivity, race-attentiveness, race-exclusivity and evaluate the social meaning that each expresses within election ballots, dating websites, and sperm donor catalogs. I argue that 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. For example, 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.