Procreative Freedom and Convicted Criminals in the United States and the United Kingdom: Is Child Welfare Becoming the New Eugenics?


International law rightly accords procreative freedom a high order of respect and it is easy to understand why that is so. Eugenics, which was advanced initially with good intentions in the belief that it was, indeed, scientific, provides us with a clear example of the dangers that can result from failing to respect procreative freedom. Usually the law in the various parts of the US and the UK mirrors international law’s respect for procreative freedom. Another principle, promoted by international law and, again, given considerable prominence in US and UK jurisprudence, is that the welfare of the child is of considerable importance.

Drawing on two recent cases from the United States, this article examines the departure from the usual approach to procreative freedom – the restrictions placed on the prisoners in this respect and conditions attached to probation or parole. These are analysed both from the perspective of US constitutional guarantees and compared to the approach taken in the UK in the light of the Human Rights Act 1998. Often this principle of the welfare of the child is one of the justifications used to restricting the procreative freedom of adults convicted of offending. The danger is that the laudable goal of respecting the child’s welfare may be applied, again, with good intentions and in the belief that it too is scientific, in turning it into the new eugenics.


Social Welfare Law

Date of this Version

September 2003