Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents Through Surrogacy

20 Pages Posted: 10 Oct 2015

See all articles by Andrea Beauchamp Carroll

Andrea Beauchamp Carroll

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Date Written: 2013

Abstract

Assisted reproductive technology (ART) has made great strides in furthering many Americans’ dreams of becoming parents. The law has come to fully embrace ART in many of its forms — particularly when it comes to a married couple’s use of a technology like in vitro fertilization (IVF). Even more morally and ethically controversial forms of ART have gained sway. Surrogacy arrangements, not so long ago relegated to the black market, are now recognized as valid and are legally enforceable in more than a dozen states. Some traditionally conservative states, such as Louisiana, are wrestling even today with drafting laws to sanction surrogacy in a limited form. Thousands of families are said to have created families through surrogacy last year alone.

The law’s evolution in accepting these modern families is laudable, but there is much work left to be done. State laws relating to surrogacy frequently continue to perpetuate discrimination based on marital status. In the relatively small number of states that do sanction some form of surrogacy, state law will often recognize and enforce a surrogacy arrangement only when the intended parents are married. The result of this marriage requirement is a body of American surrogacy law that frequently suffers from serious constitutional defects. The Constitution permits some disparate treatment of groups, but discrimination based on marital status in a fundamental matter such as family formation fails to satisfy constitutional standards and must not be tolerated.

This Article seeks to push states that open the door to surrogacy as a permissible reproductive avenue to begin affording the right to married and unmarried intended parents alike. Narrowly tailoring rules that recognize the practical realities of the widespread use of surrogacy arrangements is necessary to eliminate unconstitutional treatment of all the actors involved in the surrogacy process.

Part I of the Article will describe America’s history with surrogacy as a reproductive technology and detail the current regulatory scheme. From Baby M to a wider acceptance of gestational surrogacy, the last thirty years have brought about a serious evolution in societal and legal views on surrogacy. Part II will detail state- sanctioned discrimination in surrogacy, focusing particularly on marital status- based discrimination. Part III will consider the scrutiny that should obtain when surrogacy regulations come under constitutional attack. The appropriate level of scrutiny in this area is woefully indeterminate, leaving courts, scholars, and litigants alike stuck in a morass of uncertainty. Finally, Part IV will demonstrate that even those American states that have progressively sanctioned some form of surrogacy have occasionally done so unconstitutionally. Regimes with a marriage requirement are scrutinized on equal protection grounds and are shown to fall short of what is constitutionally required.

Limitations on the use of surrogacy in this country abound, in part because Americans simply have not fully embraced the notion excoriated thirty years ago as the “rental of the womb.” The technology is within our hands. Attitudes about the legitimacy of families created in nontraditional ways have undergone a necessary and profound change. But still, Americans find “something profoundly frightening” in the use of ART — especially surrogacy. ART has come a long way in the last several decades. I argue here that the progress we have made is laudable, but we must evolve more quickly to recognize the realities of surrogacy, to eradicate unconstitutional treatment of intended parents, and to bring American treatment of surrogacy into line with what the Constitution has protected for centuries.

Keywords: Surrogacy, Assisted Reproductive Technology, Family Law, Discrimination

Suggested Citation

Carroll, Andrea Beauchamp, Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents Through Surrogacy (2013). 88 Ind. L.J. 1187 (2013), Available at SSRN: https://ssrn.com/abstract=2671356

Andrea Beauchamp Carroll (Contact Author)

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

440 Law Center Building
Baton Rouge, LA 70803
United States

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