Building Queer Families and the Ethics of Gestational Surrogacy

Throughout American history, government has used the law to deny some citizens the right to create or sustain families with children to show contempt for those citizens. As LGBT people fought for dignity, equality, and justice from Stonewall to the present, one of the greatest success stories of that fight is the change in how the law defines and protects families. Into the 1990s, people in samesex relationships had cause to fear that their sexual orientation could be used to deprive them of custody of their children. Now, many states, through statute or case law, routinely recognize two parents of the same sex for a child, and some explicitly forbid discrimination on the basis of sexual orientation in adoption. Still, others are slowly taking steps to level the assisted reproduction playing field for same-sex couples through their laws and policies. This Essay focuses on a particular aspect of the world of family building for LGBT people, which is the use of gestational surrogacy to create families with children. Within the LGBT community, gay men are the most frequent users of this practice because they must find a woman willing to gestate a child if the fathers desire genetic connection. The ethical concerns about hiring a gestational surrogate increase when the arrangement involves cross-border reproductive travel, sometimes pejoratively referred to as “reproductive tourism,” in which commissioning or intended parents from a developed nation hire a surrogate from a developing nation to gestate a child

How Parents Are Made: A Response to Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents Through Surrogacy

Roundtable on Regulating Assisted Reproductive Technology 201

Welcome to the Wild West: Protecting Access to Cross Border Fertility Care in the United States

As has been the case with other types of medical tourism, the phenomenon of cross border fertility care ( CBFC ) has sparked concern about the lack of global or even national harmonization in the regulation of the fertility industry. The diversity of laws around the globe leads would-be parents to forum shop for a welcoming place to make babies. Focusing specifically on the phenomenon of travel to the United States, this Article takes up the question of whether there should be any legal barriers to those who come to the United States seeking CBFC. In part, CBFC suffers from the same general concerns raised about the use of fertility treatment in general, but it is possible to imagine a subset of arguments that would lead to forbidding or at least discouraging people from coming to the United States for CBFC, either as a matter of law or policy. This paper stands in opposition to any such effort and contemplates the moral and ethical concerns about CBFC and how, and if, those concerns warrant expression in law. Part I describes the conditions that lead some couples and individuals to leave their home countries to access fertility treatments abroad and details why the United States, with its comparatively liberal regulation of ART, has become a popular CBFC destination for travelers from around the world. Part II offers and refutes arguments supporting greater domestic control over those who seek to satisfy their desires for CBFC in the United States by reasserting the importance of the right of procreation while also noting appropriate concerns about justice and equality in the market for babies. Part III continues the exploration of justice by investigating the question of international cooperation in legislating against perceived wrongs. This Part concludes that consistent legislation across borders is appropriate where there is consensus about the wrong of an act, but it is unnecessary and inappropriate where there remain cultural conflicts about certain practices—in this case assisted reproduction

Making Mommies: Law, Pre-Implantation Genetic Diagnosis, and the Complications of Pre-Motherhood

“The major threats from coming advances in reproductive technology are not medical but political, social and philosophical.” Debate and concern about the ability to manipulate human life through the use of reproductive technologies is not new. As the use of technology slowly spreads, it becomes necessary to critically evaluate how calls to regulate this technology, by constraining access to or limiting particular uses of particular technologies, will impact long-standing conundrums about reproduction, parenting, and the law. To that end, this Article focuses on three topics: 1) the potential for legal regulation of pre- implantation genetic diagnosis, also known as PGD; 2) the relationship between such future regulation and the existing legal landscape attendant to parenting, procreation, and pregnancy; 3) and the specific consequences for women of legal incursion into PGD decision-making. PGD refers to a process of testing embryos prior to implantation in order to determine various genetic characteristics. Pre-implantation testing is frequently employed to determine whether the future child will have a particular disease or disability, but testing can also be used simply to determine sex

How Parents Are Made: A Response to Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents Through Surrogacy

Roundtable on Regulating Assisted Reproductive Technology 201

Welcome to the Wild West: Protecting Access to Cross Border Fertility Care in the United States

As has been the case with other types of medical tourism, the phenomenon of cross border fertility care ( CBFC ) has sparked concern about the lack of global or even national harmonization in the regulation of the fertility industry. The diversity of laws around the globe leads would-be parents to forum shop for a welcoming place to make babies. Focusing specifically on the phenomenon of travel to the United States, this Article takes up the question of whether there should be any legal barriers to those who come to the United States seeking CBFC. In part, CBFC suffers from the same general concerns raised about the use of fertility treatment in general, but it is possible to imagine a subset of arguments that would lead to forbidding or at least discouraging people from coming to the United States for CBFC, either as a matter of law or policy. This paper stands in opposition to any such effort and contemplates the moral and ethical concerns about CBFC and how, and if, those concerns warrant expression in law. Part I describes the conditions that lead some couples and individuals to leave their home countries to access fertility treatments abroad and details why the United States, with its comparatively liberal regulation of ART, has become a popular CBFC destination for travelers from around the world. Part II offers and refutes arguments supporting greater domestic control over those who seek to satisfy their desires for CBFC in the United States by reasserting the importance of the right of procreation while also noting appropriate concerns about justice and equality in the market for babies. Part III continues the exploration of justice by investigating the question of international cooperation in legislating against perceived wrongs. This Part concludes that consistent legislation across borders is appropriate where there is consensus about the wrong of an act, but it is unnecessary and inappropriate where there remain cultural conflicts about certain practices—in this case assisted reproduction