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University of California at Davis Law Review

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U.C. Davis L. Rev.





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Now that national marriage equality for same-sex couples has become the law of the land, commentators are turning their attention from the relationships into which some gays and lesbians enter to the mechanisms on which they — and many others — rely in order to reproduce. Even as one culture war makes way for another, however, there is something that binds them: a desire to establish the family. This Article focuses on a problematic manifestation of that desire: the incest prevention justification. The incest prevention justification posits that the law ought to regulate alternative reproduction in order to minimize the potential for accidental incest between individuals involved in the donor conception process. A leading argument offered by both conservatives and progressives in defense of greater regulation of alternative reproduction, the incest prevention justification hearkens back in troubling ways to a taboo long used in American law to discipline the family. That justification is problematic not just in theory, but also in fact: it could catalyze regulation that radically reforms the fertility industry, producing adverse effects on the only way in which thousands of persons each year are able to have children and become parents.

This Article uses the incest prevention justification as an opportunity to consider the scope of a marriage equality precedent — specifically, how, and to what extent, such a precedent will affect the law of alternative reproduction, a largely unregulated field. Even before the Supreme Court ruled in favor of marriage equality in June 2015, scholars were considering the impact that a marriage equality precedent could have in domains outside of marriage. This Article furthers that inquiry by considering marriage equality’s potential impact on the regulation of procreation. Its narrow objective is to argue that reproductive regulation that flows from incest anxiety is both normatively undesirable and constitutionally deficient; the logic that fueled marriage discrimination for decades — the logic of the incest taboo — ought not, and likely cannot as a constitutional matter, be grafted onto the law of alternative reproduction. Its broader objective is to show that while marriage inequality might be a thing of the past, at least for same-sex couples, its animating logic persists in the way that we think about sexuality, parenthood, and the family.


© 2015 Courtney Megan Cahill


First published in University of California at Davis Law Review.

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