In 2013, less than two years after New York granted same-sex couples the right to marry, and then again in 2015, the same year Obergefell v. Hodges extended that right nationwide, state Senator Brad Hoylman introduced legislation to lift New York’s ban on paid surrogacy. For Hoylman, the ongoing repeal effort is both “personal and political.” Although he and his partner (now husband) had circumvented the law by working with a surrogate in California, the birth of their daughter in 2011 was, according to The New York Times, tarnished by “a frisson of the illicit that seem[ed] to them … archaic and unfair in the post-marriage-equality world.” As a spokesperson for the Empire State Pride Agenda explained: “You know how the phrase goes—first comes love, then comes marriage, then comes the baby and the baby carriage.”
The campaign to legalize commercial surrogacy in New York partakes of a broader movement to expand access to assisted reproductive technologies (ARTs) in the name of lesbian, gay, bisexual, and transgender (LGBT) equality. The Supreme Court’s recent marriage decision has only added doctrinal and rhetorical fuel to that long-smoldering fire. For several decades, organizations and individuals identified with the LGBT movement have fought to rid the ART market of discrimination based on sexual orientation, gender identity, and (at least before Obergefell) marital status. Moreover they have called on various sectors of society to permit, deregulate, and even subsidize a range of reproductive technologies. Under the banner of LGBT rights, these advocates have challenged an array of so-called “barriers to access,” from gaps in insurance coverage to prohibitions of anonymous sperm donation to bans on human cloning. Such “barriers” are said to infringe the fundamental right to procreate and are condemned for their disparate and allegedly discriminatory effect on LGBT people, who are disproportionately unable or unwilling to become parents “the old-fashioned way.”
Claims of an LGBT right to assisted procreation are grounded in intensely personal desires. Many LGBT people want to become parents, and ARTs sometimes offer means to fulfill that wish with less cost and fewer bureaucratic hurdles than adoption, the most obvious alternative. But ARTs do not merely produce children; they promise offspring. In this crucial respect, often treated as an obvious advantage of ARTs over adoption, these technologies appeal to American society’s pervasive biogenetics’, its faith in the priority and superiority of biogenetic forms of kinship and identity. Many LGBT ART consumers adhere to this ideology. Some frankly admit their preference for a biological child, while others employ ARTs in ways that more subtly reveal their biogenetic investments.
The “biological bias” that often underlies LGBT ART use, however consistent with mainstream norms, runs counter to a defining strain of LGBT culture. Where biogenetics holds that “blood is thicker than water,” LGBT politics, thought, and social life have reliably countered that love, not blood, makes a family. Championing a social and functionalist, as opposed to a biogenetic and essentialist, conception of kinship, LGBT communities and their advocates have challenged what Professor Katherine Baker calls “bionormativity” and what Professor Katherine Franke calls “repronormativity.”
Will the LGBT movement abandon these insights now that the law permits gay marriage and science facilitates “queer reproduction”? In significant if not irreversible ways, it already has. In addition to giving expression and encouragement to the biogeneticist yearnings of many would-be procreators, efforts to support LGBT people’s family-building projects evince at least two troubling tendencies. The first is a striking double standard where adoption is concerned. Although adoption is a path to parenthood notoriously strewn with obstacles, it is nonetheless spared the claims of disparate-impact discrimination so often asserted against barriers to ART. In practice, this double standard amounts to a transformative approach to assisted procreation and an acquiescent stance toward adoption law and policy. These very different goals cannot be justified by easy but ultimately circular reference to a categorical distinction between the fundamental right to procreate and the statutory privilege to adopt. If anything—and this is the second problem—invocations of the right to procreate tend to reify biological parenthood’s inordinate prestige, much as same-sex couples’ invocations of the fundamental right to marry entrenched, nowhere more clearly than in Obergefell itself, a morally saturated and politically regressive vision of marriage.