Straddling the Columbia: a Constitutional Law Professor's Musings on Circumventing Washington State's Criminal Prohibition on Compensated Surrogacy

• Publication year: 2021

STRADDLING THE COLUMBIA: A CONSTITUTIONAL LAW PROFESSOR'S MUSINGS ON CIRCUMVENTING WASHINGTON STATE'S CRIMINAL PROHIBITION ON COMPENSATED SURROGACY

Peter Nicolas(fn*)

INTRODUCTION

I have spent most of my professional life as a law professor at the University of Washington specializing in constitutional law, yet when asked as a child what I wanted to be when I grew up, neither “lawyer” nor “professor” rolled off my tongue. Instead, when queried by adults or other children, I succinctly and matter-of-factly stated that I wanted to be a “mommy.” At that young age, I only had two primary role models: my mother, who at the time was a full-time mommy, and my father, who was a doctor. My squeamishness about blood and guts certainly made being a “mommy” the natural default choice.

I was, of course, teased a bit by my contemporaries for my gender-bending choice of a career path and told by adults that only girls could be mommies. Indeed, when I was growing up even young girls were encouraged to think about a future that included something other than motherhood. To avoid unwelcome future attention to myself I was thus quickly socialized to suppress my desire to “mother” children. As I grew older and came to the self-realization that I was gay, these early life lessons likewise counseled in favor of keeping that little bit of information to myself as well.

I soon learned that the combined forces of law and biology together served as significant roadblocks for a gay man interested in becoming a legal parent to a child. The law in many states has long been hostile to gay parenting, with some states prohibiting adoption in the first instance by gay individuals(fn1) or same-sex couples,(fn2) and other states prohibiting so-called second-parent adoption, whereby one same-sex partner adopts the natural or adopted child of the other.(fn3) Moreover, neither I nor my future partner could be a “mother” in the gestational or genetic sense of the word since as men we lack two critical ingredients for creating human life, wombs and eggs.(fn4) Thus, if I was to achieve my goal of becoming a “mother” in the nurturing sense of that word,(fn5) I was going to need the assistance of one or more women. I thus ventured into the complex legal and medical world of becoming a parent through the assistance of a surrogate and an egg donor.

In this Article, I recount-through both the prisms of an intended parent and a constitutional law scholar-my successful efforts to become a parent via compensated surrogacy and egg donation. Part I of this Article provides a narrative of my experience in becoming a parent via compensated surrogacy, and the various state and federal legal roadblocks and deterrents that I encountered along the way, including Washington State's criminal prohibition on compensated surrogacy as well as federal guidelines issued by the U.S. Food and Drug Administration regarding the use of sperm by gay donors in the process of in vitro fertilization. Part II of this Article considers the extent to which laws that criminalize or otherwise restrict one's ability to enter into surrogacy arrangements run afoul of either the substantive protections of the Due Process Clause or the guarantees of the Equal Protection Clause. Part III of this Article considers the extent to which laws that stand in the way of intended parents establishing legal parentage of children born via surrogacy violate those same constitutional guarantees.

I conclude that laws that restrict one's ability to enter into surrogacy arrangements violate both the long-recognized fundamental right to procreate(fn6) as well as a more specifically articulated fundamental right to procreate with the assistance of third parties, while laws that stand in the way of intended parents establishing legal parentage of children born via surrogacy violate the fundamental right to care for and have custody of one's children.(fn7) In addition, I demonstrate that some of these restrictive statutory schemes can also be challenged on the ground that they violate the equal protection rights not only of those seeking to have children via surrogacy, but also the children born to them.

I. MY JOURNEY TO PARENTHOOD VIA COMPENSATED SURROGACY

A. Criminalizing Commercial Surrogacy: The Washington State Approach

After graduating from law school and clerking for a federal judge, I had the good fortune of relocating to Seattle, Washington after securing a teaching job at the University of Washington School of Law. During the years I have lived in Washington, the state legislature enacted a series of laws designed to further the rights of sexual minorities, including a statewide antidiscrimination law,(fn8) a statewide domestic partnership registry,(fn9) and ultimately, a state law extending full marriage rights to same-sex couples.(fn10)

After my then-domestic partner (now husband) and I had been together for a decade, we began to explore the possibility of becoming parents via surrogacy. We learned that there were two types of surrogacy, traditional and gestational. With traditional surrogacy, the surrogate allows her eggs to be artificially inseminated with the sperm of an intended father, with the result being that the surrogate has not only a gestational but also a genetic connection to the resulting child.(fn11) In contrast, with gestational surrogacy an embryo is created through the process of in vitro fertilization using the eggs of another woman, either those of the intended mother or a third-party egg donor. This embryo is implanted in the surrogate, who subsequently gives birth to a child to whom she has no genetic connection.(fn12) We also learned that either type of surrogacy arrangement could be either “altruistic” or “uncompensated” on the one hand or “commercial” or “compensated” on the other. With altruistic surrogacy, the surrogate receives no compensation (save for that necessary to cover any expenses associated with the pregnancy and birth), while with commercial surrogacy the surrogate receives a fee for serving as a surrogate.(fn13) Altruistic surrogacy often involves a close friend or family member serving as a surrogate, while commercial surrogacy involves a person that the intended parents met solely for the purpose of arranging a surrogate birth.

While trying to wrap our heads around the different types of surrogacy, we were surprised to learn that, despite the otherwise favorable legal atmosphere for same-sex couples in Washington State, Washington law not only renders compensated surrogacy contracts unenforceable,(fn14) but actually makes it a crime to enter into them.(fn15) Specifically, under Washington law, entering into such contracts is a “gross misdemeanor”(fn16) punishable by up to 364 days in prison and a fine of up to $5,000.(fn17) Moreover, custody of the child born via the surrogacy arrangement would be left to the discretion and uncertainty of a judge applying a multi-factored statutory test.(fn18) Uncompensated surrogacy, in contrast, is not a crime under Washington law. In 2011, when we were in the midst of exploring surrogacy, the Washington House of Representatives voted in favor of a bill that would have decriminalized surrogacy, regulated and provided for the enforcement of gestational surrogacy agreements, and left traditional surrogacy arrangements unregulated.(fn19) However, the bill failed to advance in the Washington Senate. Thus, unless someone within the state was willing to serve as a surrogate for us without being compensated for her efforts, a rather unlikely-and in my mind, unreasonable-prospect, we had to look outside of the state in search of a jurisdiction with a more favorable legal atmosphere for surrogacy.

B. A Legal Patchwork: A Survey of the Law of Surrogacy in the United States

Since pursuing surrogacy in our home state was not an option, we had to select another state or country in which to pursue surrogacy. For us, the key consideration was to select a jurisdiction with favorable laws on the issue, or, if not favorable, at least not hostile to surrogacy.

There are a handful of foreign countries where compensated surrogacy is lawful, far less expensive than in the United States, and that cater to foreigners, including India, Thailand, and Mexico.(fn20) Yet, even if we were willing to overlook our desire that the surrogate live close enough to us that we could attend key appointments and the birth of our future child, there were other reasons to pursue surrogacy domestically. For starters, the child would be considered born “out of wedlock” to a U.S. father and a foreign mother. Under U.S. immigration laws, establishing U.S. citizenship for such a child is somewhat more complicated than for a child born out-of-wedlock to a U.S. mother or “in wedlock” to an opposite-sex U.S. couple.(fn21) Second, judgments of parentage in sister states are entitled to Full Faith and Credit under the U.S. Constitution even in states that otherwise would not permit same-sex parentage of a child to be established in the first instance.(fn22) In contrast, recognition of a judgment of parentage from a foreign country (if one were even available) would be recognized only at the discretion of each individual U.S. state.(fn23)

Having turned our focus stateside, we were still faced with a wide spectrum of legal regimes from which to choose.(fn24) We discovered that state laws governing surrogacy can be divided into roughly six categories...