Altruistic Surrogacy Ban for Gays, Singles Wrongly Discriminates

by Wesley J. Smith, J.D., Special Consultant to the CBC on June 25, 2012

When IVF began, we were told it was only to permit infertile married couples have children. It has since expanded geometrically to become an industry that also includes eugenic options, commercialization of gametes and uteruses, and facilitation of what were once called alternative lifestyles. It has resulted in treating nascent life as a natural resource with embryonic stem cell research. It turned procreation into a matter of consumerism and manufacture. It treats human life as mere medical waste when the unwanted extras are thrown away.

Clearly, I am not a fan. But IVF is here to stay. The question is how to best regulate it, which in our entitement culture proves very difficult. But now, Queensland, Australia seems about to restrict altruistic surrogacy to comport with the original intent of IVF. From the Brisbane Times story:

The Queensland government will ban single people and same-sex couples from having a child through surrogacy, in a bombshell move announced during a fiery overnight debate on watering down same-sex civil unions. In a move that will further inflame the anger of Queensland’s LGBT community, Attorney-General Jarrod Bleijie announced about 10:20 pm that the government would introduce in the future a bill to reshape the altruistic surrogacy law. Mr Bleijie said the Newman government’s law would be similar to the one proposed by the Liberal National Party’s Lawrence Springborg several years ago, and would repeal Surrogacy Act provisions dealing with single people, same-sex couples, or any de facto couple that had been together for fewer than two years.

I am not sure what I think about this. I oppose surrogacy as a general proposition. I believe that adoption is the best and most ethical move when one wants a child and can’t (for whatever reason) give birth. In fact, in our anything goes world, such self restraint is the only hope.

But that is a different matter altogether from whether surrogacy should be banned legally, which by definition involves state coercion. I unequivocally support laws outlawing commercial surrogacy — in the same ways and for the same reasons that I believe it is proper to ban organ purchasing. Indeed, I believe commercial surrogacy contracts should be void as against public policy.

Altruistic surrogacy seems a different matter to me. If a woman decides to gestate and give birth as a “gift,” I don’t quite see how that is materially different from a woman giving birth to an unwanted child and giving him or her up for adoption. Or to use another analogy, it is akin to someone giving another person a kidney. I have a hard time seeing how it could be outlawed as a matter of personal liberty.

But what about permitting altruistic surrogacy for married couples but not gays or singles, as Queensland proposes? That’s discriminatory, to be sure. But does it serve a sufficiently vital state purpose to permit such legal distinctions, say, by encouraging stable, two-parent heterosexual families? That would require clear evidence, I think, that non traditional families inherently aren’t stable and/or are bad for children. Maybe I am wrong — this isn’t my field — but I don’t think that can be demonstrated. (This is a different matter than whether such consumerist services should be paid for by the state or health insurance.)

So, it seems to me that if altruistic surrogacy is going to be allowed for one cohort, as a general proposition (subject to evidential refutation) it has to be allowed for all. Similarly, if a state is going to ban altruistic surrogacy for some, it must for all — and see if the restriction survives court challenge.

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