Family Equality and Surrogacy

Biopolitical Times
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On June 26, the U.S. Supreme Court ruled in a widely celebrated decision that all 50 states must issue marriage licenses to couples regardless of their sexual orientation, likely ending an era of patchwork marriage rights for same-sex couples in the United States.

In a same-day op-ed for the Los Angeles Times, Douglas NeJaime, law professor and faculty director of the Williams Institute at UCLA, argues that “equality for gay families” has not been delivered with marriage. To ensure family dignity for gays and lesbians, says NeJaime, the next step is removing legal barriers to surrogacy. By failing to embrace commercial surrogacy, NeJaime continues, states will be effectively limiting the definition of family to heterosexual couples who can bear their own children.

For many decades leading up to present day, a number of discriminatory state laws have specifically excluded LGBTQ people from adoption and parental rights. This history is heart-breaking. Lesbian, gay, and transgender parents have been deemed “unfit” for being “antisocial,” “mentally ill,” and lacking in the moral fiber of “traditional family values” required to raise an upstanding citizen. These parents have fought for the dignity of their families, in schools, hospitals, social gatherings, churches, and too often, in unsympathetic courtrooms. With the victory of marriage equality, there are pressing issues for LGBTQ rights that extend way beyond weddings—as NeJaime suggests. Yet looking to the same principles of justice and equality that the marriage decision represents, we should proceed with caution and not move to an uncritical acceptance of the commercial surrogacy industry in this moment of hope and change.

Assistive reproductive technologies (ART) have helped many couples facing fertility barriers to start families. As NeJaime explains, lesbian couples can make use of commercially available sperm, in vitro fertilization, and fertility treatments for the partner who carries the child, while gay couples can turn to commercially available eggs and gestational surrogates. Yet the ART industry is highly unregulated, with a throng of unresolved issues including the safety of women and children, informed consent, privacy versus access to information, economic access, and marketing standards.

Additional problems surface when we turn our attention to those who provide wombs or gametes— especially eggs—in assisted reproduction, and to the children who result from these arrangements. Too often in commercial surrogacy, the desires of intended parents overshadow the health, rights, and well-being of those other people: the woman who provides her eggs, the woman who gestates and delivers the baby, and even the longed-for baby.  

Women who sell their eggs to clinics, often for use as anonymous “donors,” are required to undergo drug treatments to increase ovulation that can have serious impacts on their health. Women who work as surrogates, especially in countries other than the US, often enter into contracts where the intended parents pay for both the attorney and the healthcare providers—raising concerns about compromises to the surrogate’s health and rights. A growing number of children conceived with third-party gametes and gestated by surrogates are realizing that they want to know about and perhaps to meet the people who contributed to their birth.

These and other unanswered questions hover around commercial surrogacy. And we already know that some of these ongoing practices are clearly harmful to women who bear children for others. Shouldn’t affronts to their human dignity be among those for which we fight? As we celebrate marriage equality and acceptance, we must also ensure that the voices of everyone participating in the creation of non-traditional families are heard, and that their rights are recognized and protected.

Previously on Biopolitical Times:

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