Happy Fourth To All ART-Formed Families! Enjoy Your Rights -- But We Still Have A Long Way To Go.
American citizens enjoy the freedom to marry who they want and to have kids with whom they want -- for the most part.
As we observe America’s Independence Day this week, we have much to celebrate. For the most part, American citizens enjoy the freedom to marry who they want, to have kids with whom they want, and to turn to assisted reproductive technology–egg, sperm, and embryo donation, and surrogacy–to have those kids when traditional methods aren’t viable.
While other countries prohibit or even criminalize the use of surrogacy, American couples and singles, as well as international couples and singles who come to America, can enjoy the possibility of fulfilling their dreams of a baby through assisted reproductive technology. Ah, sweet freedom! We’re only a few years away from a bald eagle personally delivering your baby to you. That’s American eggceptionalism.
Unfortunately, the devil is in the details. We still have a way to go to get to where all Americans enjoy basic reproductive freedoms and all parents can be considered equal.
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Equality Problems. Last week, I was excited to report on the Supreme Court’s ruling in Pavan v. Smith. It looked like we received a definitive answer to the question — did the Supreme Court’s 2015 ruling in Obergefell just grant the right to same-sex marriage, or did it also grant a significant “constellation of benefits” that comes with marriage? In Pavan, the Court said, yes, it really did mean that same-sex couples across the country should enjoy a broadly conceived “constellation of benefits” that comes with marriage. And specifically, that same-sex female couples in Arkansas should not have reduced rights compared to heterosexual couples when it comes to parents through assisted reproductive technology making it on to a child’s birth certificate.
Pidgeon v. Turner. But on Friday, June 30, 2017, and post-Pavan, the Texas Supreme Court issued a frustrating opinion in a case called Pidgeon v. Turner. That decision makes me think we are not all on the same page yet. Pidgeon centers around the Houston mayor’s decision in 2013 to mandate the availability of employment benefits to the spouses of persons in same-sex marriages. That decision meant that benefits were to be the same across married heterosexual and LGBT city employees.
The plaintiffs in this case are not the spouses in same-sex marriages who were denied equality and benefits before 2013. Nope. The plaintiffs are two taxpayers who are upset that public funds were used to give benefits to the spouses in same-sex marriages (and who are availing themselves of Texas’s taxpayer standing doctrine). After Obergefell, I would think that this case would be easy. But many argue that Obergefell’s holding was narrow and just about marriage itself – not the other benefits tied to marriage.
But I thought Pavan made it clear. The U.S. Supreme Court meant for there to be equality not just in marriage itself, but in the “constellation of rights, benefits, and responsibilities that states have linked to marriage.” In Pidgeon, the Texas Supreme Court opined that Obergefell did not address the specific issue as to whether “the Constitution requires states or cities to provide tax-funded benefits to same-sex couples.” It thus remanded the case to the trial court for further proceedings.
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To be sure, Pidgeon is procedurally complex. The Mayor’s decision even pre-dated Obergefell. Texas law professor Josh Blackman argues that a few more procedural steps must be taken before Houston prevails.
But the ultimate answer should be simple: the same-sex couples get the same benefits as opposite-sex couples. And requiring the defendants to engage in protracted litigation to “assist the courts in fully exploring Obergefell’s reach and ramifications” seems unnecessary to me, especially in light of Pavan.
Justice often must be won through hard-fought battle. Hopefully Texas just needs a little more time getting to the right answer.
New Jersey May Not Be An Outlier Forever. In further inequality issues, not all states are created equal. When it comes to surrogacy, each state has its own framework for dealing with the issue. Here again is my favorite map by Diane Hinson’s Creative Family Connections describing the legal situation in each state. New Jersey (one of the states in red) is currently unfriendly to surrogacy arrangements. It doesn’t recognize the validity of surrogacy (gestational carrier) contracts. Which presumably means that Governor Chris Christie will be secretly entering into a surrogacy contract soon. Probably on a closed beach.
In any event, the New Jersey State Senate last week passed a bill to change that. S-1238 is headed to the State Assembly where, if passed (and if not vetoed by Governor Christie for the third time) would allow gestational carrier arrangements to be recognized in New Jersey. It would require certain safeguards, such as the gestational carrier being over 21, having a child of her own, and undergoing medical and psychological screening. It would also require the intended parents to undergo psychological screening. Let’s hope it passes
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The Sperminator. In other news of ART-related freedom, Ari Nagel—the New York math professor and now internationally famous sperm donor—is still on his mission to help women in need of his genetic contributions. I wrote about Nagel about last year. Now dubbed the “Sperminator,” Nagel is presumably telling a lot of women “hasta la vista, baby-lessness.”
While it’s understandable that the logistical details of red solo cups (don’t drink out of the wrong one!) and Target-bathroom sperm donations are enough to make the most open-minded of us a little grossed-out, I can’t help but admire what appears to be the Sperminator’s… er …Nagel’s genuine desire to help others. And given the cases of sperm banks selling problematic sperm, it doesn’t hurt to know exactly what you are in for. So here’s to you, Sperminator. Thanks for continuing to say “I’ll be back.” Let freedom ring.
Earlier: Supreme Court Confirms ‘Constellation of Benefits’ For Same-Sex Couples
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.
