With the increase in legalization of same-sex marriage in countries around the world, surrogacy has come to the forefront of public controversy. Many gay couples are happy to begin forming families, and surrogacy is a great way to do it.
Contracted compensated surrogacy is only legal in a handful of jurisdictions, though. A few countries like Canada and the UK prohibit compensated surrogacy but do allow “altruistic” surrogacy. In other words, when a friend or relative offers to carry the baby for free. However, many countries simply ban surrogacy outright, including much of the Middle East and EU.
Surrogacy Laws In the US
In the United States, four states ban surrogacy outright:
- North Dakota
Many other states ban compensated surrogacy, only allowing altruistic surrogacy, and many more have ambiguous or undefined laws. In these states, as in countries with undefined regulation, surrogacy contracts are often hard to enforce and courts tend to favor the woman and put up a number of obstacles for non-biological parents (usually one of the men in the case of a gay couple) and sometimes even the biological father.
Although surrogacy bans often affect heterosexual couples as well, their most blatant ramification is the effective ban on couples of gay men having biological children. Although you would think this obvious discrimination would be recognized, it’s usually pushed under the rug by louder cries of “protection for women,” supposedly the purpose of the bans. But is it really? Or is that just an excuse to discriminate against gay couples?
Correlation With Discrimination Against Same-Sex Marriage
In general, those who support surrogacy bans claim it’s to protect women from being exploited. Basically, they say that people essentially pay to use women’s bodies as baby-making machines, and these women are often from lower-income backgrounds.
However, it’s hard to believe that justification when the correlation between discrimination against same-sex marriage and surrogacy bans is so obvious. For instance, Michigan bans surrogacy and has arguably the most restrictive constitutional amendment in the US prohibiting the recognition of same-sex marriage and even civil unions.
Indeed, the very state senator who introduced Michigan’s Surrogate Parenting Act in 1988, which banned surrogacy, was Connie Binsfeld, a Republican, conservative, and self-proclaimed feminist. She would later go on to become lieutenant governor of Michigan under governor John Engler who, in 1995, signed the state’s first ban on same-sex marriage into law.
In the EU, the connection is a bit more convoluted. As of 2022, most western European countries recognize same-sex marriage including the major economies like Germany, France and Spain, with Italy recognizing civil unions. Meanwhile, most western European countries have banned surrogacy.
Looking into the situations of the specific countries gives a clearer picture. For example, Germany’s Embryo Protection Act, which banned surrogacy in Germany in 1990, was passed just after reunification when a boost from former East German voters gave the Christian Democratic Union, or CDU, Germany’s conservative political party strong control of the government. The CDU historically promoted traditional values and rejected same-sex marriage until changing course only in the last decade.
The timing of Germany’s ban can also give us another clue. In the early 90s, with the removal of the Berlin Wall and bans on emigration in Eastern Europe, many Eastern Europeans began flooding into Western Europe in hopes of a better economic situation. In many cases, the women sought work as prostitutes and even surrogates.
Combine racial discrimination, sexual taboos and a social bias against gay couples, it’s easy to see how these bans had nothing to do with protecting women and everything about controlling the choices and bodies of others. Of course, most EU countries have now created a justification after the fact by citing Article 3 of the Charter of Fundamental Right of the European Union which states:
“In the fields of medicine and biology, the following must be respected in particular: … the prohibition on making the human body and its parts as such a source of financial gain.”
But is this same logic applied consistently? That leads into the next piece of the puzzle.
“Protecting Women” Hypocrisy
If people, or women specifically, should be prevented from entering into voluntary contracts, specifically ones which “sell their bodies,” in order to protect them from exploitation—and apparently themselves—why isn’t that legal philosophy applied in other situations?
For example, Michigan seems to have no problem letting women sell their blood plasma or breast milk for money. More invasively, they can sell bone marrow or their entire bodies for experimental studies. And of course, they can join the military for pay.
The same is true in the EU, with Germany seemingly not applying Article 3 of the EU charter to blood plasma. Plus, women can sell their bodies as prostitutes or soldiers in the military.
Is protecting women from exploitation really the concern then?
Stop Controlling Women’s Bodies and Men’s Sexuality
Telling women what they can and can’t do with their own bodies doesn’t seem like “feminism” or gender equality to me. But as we’ve seen, that’s not the true root of anti-surrogacy policies.
Rather, jurisdictions around the world ban surrogacy because, simply, they want to control others. They don’t want to see a woman subverting the traditional gender role of mother and producing a child for someone else, and they certainly don’t want to see two loving gay parents raising the child.
Luckily, public opinion has been turning strongly toward surrogacy legalization in both the US and Europe. Hopefully soon, everyone will have the opportunity to be a parent regardless of their sexuality and gender.