WINDSOR, SURROGACY, AND RACE
Khiara M. Bridges(fn*)
Abstract: Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court's recent decision in United States v. Windsor . In the decision, the Court envisions same-sex couples and the families that they head as valuable threads in the fabric of American society. Surrogacy arrangements are vehicles for same-sex couples to produce the families that Windsor celebrates. This fact may encourage opponents of surrogacy arrangements who have been concerned about the racial implications of the practice to reconsider their opposition. This Article conducts that reconsideration, ultimately concluding that while surrogacy arrangements are beneficial because they enable persons who are unprivileged by virtue of sexual orientation to have children, they may reaffirm extant racial hierarchies and exacerbate the marginalization of persons and families that are already unprivileged by virtue of race and class. However, instead of calling for a ban on surrogacy for these reasons, the Article argues that there are more desirable avenues for destabilizing racial hierarchies and undoing the marginalization of unprivileged persons and families.
INTRODUCTION
Scholars and activists interested in racial justice have long been skeptical of surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Rarely have critical thinkers about race approached surrogacy as merely a technological marvel-a remarkable feat of science that enables infertile couples to bring the children that they so very much desire into the world. Instead, many scholars and activists who have devoted their time and energies to fighting for racial justice have conceptualized surrogacy as a frightening prospect, something that should be left to pages of science fiction lest it bring nightmarish racial horrors to real life. The question that sociologist Barbara Katz Rothman asks about surrogacy reflects the sentiment-the thinly-veiled fear and loathing-that many critical thinkers about race have had about the practice: “Can we look forward to baby farms, with white embryos grown in young and poor Third-World mothers?”(fn1) This possibility has led many persons who are interested in racial justice to argue that surrogacy ought to be prohibited.
But, perhaps critical thinkers about race should reconsider their contempt for surrogacy in light of recent shifts in society. The most significant shift that might merit a reconsideration of surrogacy is the increasing recognition and legitimation of lesbian, gay, bisexual, and transgender (LGBT) persons and the families that they have created and desire to create. The Supreme Court's recent decision in United States v. Windsor (fn2) is remarkable for its inclusive vision: The Court envisions same-sex couples, and the families that they head, as valuable threads in the fabric of American society. This country is a diverse one, and Windsor declares that same-sex couples and the families they create make wonderful, legitimate, respected contributions to the diversity of family forms present in the nation.
Surrogacy arrangements are vehicles for same-sex couples to produce the families that Windsor applauds. Thus, when critical thinkers about race condemn surrogacy, they condemn a means through which same-sex couples can produce the families that Windsor celebrates. This fact may encourage opponents of surrogacy arrangements who have been concerned about the racial implications of the practice to reconsider their opposition.
This Article conducts that reconsideration. Part I discusses Windsor and its concern for the children that same-sex couples parent, noting that part of the reason why the Court strikes down the federal government's refusal to recognize same-sex marriages is because of the harm that the refusal will inflict on the children of same-sex couples. Part II discusses the myriad reasons why critics who wrote about surrogacy in the late 1980s to mid-1990s opposed surrogacy arrangements, paying special attention to these first generation fears that surrogacy arrangements would magnify racial inequalities inasmuch as critics predicted that wealthy white people would look to poor women of color to carry and give birth to the white babies that the couples covet. Part II goes on to discuss the fact that these fears about white couples commissioning poor women of color to act as surrogates did not materialize-at least, they did not materialize insofar as poor, U.S.-born women of color have not been widely commissioned to act as surrogates. This Article conceptualizes this fact-white couples' failure to look to U.S.-born women of color for surrogacy services-as a racial implication of surrogacy that is a second generation concern. Moreover, it is a concern that may move those who are interested in racial justice to continue to oppose surrogacy arrangements. Part III then asks whether the disturbing racial implications of surrogacy are muted when same-sex couples commission the birth of babies. This part ultimately concludes that while surrogacy arrangements are beneficial because they enable persons who are unprivileged by virtue of sexual orientation to have children, they may reaffirm extant racial hierarchies and exacerbate the marginalization of persons and families that are already unprivileged by virtue of race and class. However, instead of calling for a ban on surrogacy for these reasons, this Article concludes that there are more desirable avenues for destabilizing racial hierarchies and undoing the marginalization of unprivileged persons and families. These avenues are more desirable because they do not involve limiting opportunities for LGBT persons, but rather expanding opportunities for poor people of color of all sexual orientations and gender identities.
I. THE SPIRIT OF WINDSOR
In United States v. Windsor, the Supreme Court struck down section three of the federal Defense of Marriage Act (“DOMA”), which defined marriage within federal law as only involving a man and a woman(fn3)- despite the fact that an increasing number of states had passed laws that permit individuals of the same sex to marry.(fn4) Many aspects of DOMA disquieted the five-Justice majority in Windsor . Justice Kennedy, who authored the majority opinion, noted that, in addition to the equal protection questions that the provision raised, there were disconcerting federalism(fn5) and due process(fn6) concerns, as well. Nevertheless, it appears that the Court took the equal protection route: it seems that, after finding the law motivated by animus(fn7) and, accordingly, that it did not pursue any legitimate governmental interest,(fn8) the Court ultimately struck down the law as a violation of the Equal Protection Clause.(fn9)
Despite the ambiguities about the basis for the Court's holding, it is apparent that the Court's decision was partially motivated by a concern for the children being raised by same-sex couples. Justice Kennedy uses powerful language to describe the harms that DOMA inflicts on the children of individuals whose marriages the federal government refuses to recognize. He notes that, not only does DOMA demean the individuals who are lawfully wedded under state law, but it also “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”(fn10)
Thus, Windsor expresses a sincere worry about the children of same-sex couples.(fn11) The Court recognizes that, because of DOMA's purpose and effect of disparaging their parents' relationships, these children will suffer harms. Moreover, the Court's recognition of these harms is not begrudging in the least. Indeed, the majority's decision is remarkable for its complete willingness to take the perspective of children being raised by two parents of the same-sex and its complete willingness to imagine the shame and sense of illegitimacy that DOMA could make them feel.(fn12)
Windsor 's defense of families headed by same-sex parents functions to declare that these families are more than “acceptable”-more than something that an enlightened society should merely tolerate. Instead, the decision asserts, albeit implicitly, that families headed by individuals of the same-sex are a welcome and wanted feature of contemporary life in the United States-adding to the diversity of family forms found in a country that, historically, has proclaimed pride in its diversity. If this is the spirit of Windsor, then the decision may call into question laws that function to frustrate the formation of those nontraditional families that the Court's decision welcomes into the body politic.
So, the question...
