Todd Jensen proposed to Gabe Faibish on a warm evening in May 2012. They were at Lantern, a romantic pan-Asian restaurant in Chapel Hill, the sort of place where every pea shoot and pork chop has a local pedigree and the light is low and flattering. They’d walked to dinner from their recently remodeled house, and, though the night was an auspicious one—the ninth anniversary of their first date—Gabe was not expecting a proposal of marriage. “I thought we were just trying to make it through the week,” Gabe remembered, a little ruefully. “It was one of our ‘passionate periods.’” Gabe, a writer and actor used to long considerations of character and motivation, said Yes, but not now. Todd, a self-assured public-health researcher and professor, heard No. They walked home in a deflated, wistful mood, walked their Labrador, and went to bed.
For Gabe, the desirability of marriage, and the idea that he might live happily inside that institution, was relatively new. He didn’t come out until his early thirties, in graduate school, and before that had spent years in a committed and loving relationship with a woman, struggling all the while with his sexuality. For a long time—even after he met Todd, on a picnic with friends in Central Park—he thought that being gay meant certain kinds of family structures were closed to him. He would not get married, would not have a house with a dog and a yard and children.
Gabe deliberated, mostly internally, for the next several months, and finally decided: he was ready. They married the next June, in Brooklyn—same-sex marriage was constitutionally forbidden in North Carolina—in the garden of a favorite Carroll Gardens restaurant. The ceremony was Jewish with Buddhist touches: their guests chanted the Buddhist Prayer of Loving Kindness after Gabe and Todd stomped the glass that symbolized the start of their new life together, and their chuppah was made of both Gabe’s grandfather’s tallith and a Buddhist prayer shawl Todd uses during meditation. Months later, they started talking about kids, an even bigger, more important question for both of them than matrimony.
They discussed the question for more than a year. Gabe wondered what their new life would look like, what child-care responsibilities would mean for his day job and his writing life, how parenting would affect their relationship. After a hard, soul-searching winter—during which he read a lot, joined a swim clinic, talked intensively with close friends about his doubts and desires about becoming a parent—Gabe decided affirmatively. He wanted to raise a child, an undertaking he could imagine only with Todd at his side.
“The history of marriage is one of both continuity and change,” wrote Supreme Court justice Anthony Kennedy two years after Gabe and Todd tied the knot, in the majority opinion of Obergefell v. Hodges, the historic decision that legalized same-sex marriage nationwide. Kennedy’s opinion, joined by Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor, referred to changes such as the abandonment of coverture and the decline of arranged marriage, but also the growing reality and public recognition of different kinds of family structures, including same-sex couples who cannot or do not have children, as well as couples who adopt or parent biological children. “Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations,” wrote Kennedy.
In advance of the decision, many SCOTUS watchers predicted that the court’s reasoning would rest both on a non-procreative view of marriage, established in an earlier case about contraceptive access, as well as on this expanded definition of family. The split feels like a natural one to me—it makes sense that access to something as varied and complicated as marriage would have all kinds of reasoning behind it. But some legal scholars saw the potential for other avenues of legal restriction, as well as a natural alliance between same-sex and some opposite-sex couples who seek ART to build their families.
“As same-sex couples have gained access to marriage, some who opposed same-sex marriage have shifted their views, expressing support for marriage equality while attempting to limit its impact,” wrote Douglas NeJaime, a professor of law at UCLA, in an essay written in advance of the Obergefell decision for the Yale Law Journal. “In particular, some now accept same-sex marriage while maintaining their commitment to biological, gender-differentiated parenting. In other words, they abandon their opposition to same-sex couples’ exclusion from marriage without abandoning a chief argument used to support that exclusion.”
NeJaime warned that, even as marriage equality becomes the law of the land, “new sites of conflict are emerging.” He cited David Blankenhorn, a prominent social conservative and founder of the Institute for American Values, who changed his mind about same-sex marriage—he testified in support of California’s Proposition 8, the 2008 constitutional amendment prohibiting same-sex marriage, but later came out in support of federal recognition—while continuing to maintain that “no same-sex couple, married or not, can ever under any circumstances combine biological, social and legal parenthood into one bond.” Parenthood by same-sex couples would always be lesser, Blankenhorn insisted, because of biology. His organization funded and published a study of young adults conceived through sperm donation called “My Daddy’s Name Is Donor” and works to restrict ART based on the belief that donor-conceived children fare less well than others and have rights that are not being protected.
NeJaime calls family formation “the next frontier” of sexual-orientation equality. On a personal level, that’s true for Gabe and Todd, who face a number of restrictions and opportunities, both biological and legal, as they consider how to have a child.
Gabe and I are members of the same four-person writing group; we meet once a month at a small, treehouse-like café on the outskirts of Chapel Hill and often start with gossip and personal news. I remember when Gabe first told us that he and Todd were considering parenthood; he confessed his ambivalence, and another member of our group warned him about needing to be really sure before taking the leap. She’s a gracious and thoughtful woman who had children relatively young—her kids are now at that age where they seem at once scarily independent and also impossibly time consuming—and she must have thought, Uh-oh, do you really know what you’re getting into?
But I related, through my own years of indecision, and sent Gabe what I hoped was an encouraging email the next morning. By then I’d had my daughter and was something of an evangelist for parenthood. But also, I hope, for ambivalence and the way a complicated understanding of the future allows you to live for a while with both possibilities: have a baby and stagger through a year or two of distraction and sleeplessness and joy, or continue a child-free life of freedom and romance. Adopting or making use of reproductive technologies—the only way Gabe and Todd would become parents—means a long period of careful planning, of waiting. I don’t know anyone who has embarked upon either adoption or ART without some degree of ambivalence and second-guessing.
“Family happens incrementally,” writes legal scholar Martha Ertman in Love’s Promises, a book that exalts the power of contracts in family planning, especially for what she calls “Plan B” families, which are created in uncommon ways—through ART, adoption, family blending, or same-sex or single parenting. By Plan B, Ertman says, she does not mean that these kinds of families represent a second or lesser choice; she means instead to replace “disdain or condescension with a … morally neutral claim that society and people individually are better off when we can choose when, how, and with whom to have a family.” Ertman’s own family was created through donor insemination and contractual parenting—her son’s genetic father is also a close friend and coparent. After Walter’s birth, Ertman and Victor, the child’s father, each married same-sex partners, and Walter now has two step parents in his life. In Love’s Promises, the incremental creation of family refers both to the way Walter has accrued his parents and also to the transforming nature of parenthood: “Walter’s birth made me a biological mother,” she writes, “but only changing, feeding, loving, and worrying about him made me a mom.”
In a larger way, the choices available to LGBT families have happened incrementally too. Just a generation ago, many gay men felt as Gabe once did about “traditional” family life—it was unavailable to them, not only biologically but also socially. Same-sex marriage, advances in reproductive technology, and more liberal adoption laws have opened doors to some people that were once sealed shut, and the people walking through them now are often amazed at the rapid evolution that has happened in their lifetimes. In the concluding chapter of Far From the Tree, Andrew Solomon writes, “For a long time, children used to make me sad. The origin of my sadness was somewhat obscure to me, but I think it came most from how the absence of children in the lives of gay people had repeatedly been held up to me as my tragedy. Children were the most important thing in the world, and so they were mascots for my failure.”
I also grew up indoctrinated into a belief system that put children at life’s center, and when I thought I wouldn’t have children, I wanted a vastly different life, one that wouldn’t remind me constantly of what I didn’t have. Other people’s children made me sad, too—not the children themselves but the way the parents held them up (rightfully but also, to my eyes, smugly) as the core of their existence.
Now I have a daughter, and Solomon has four children—two are his husband’s genetic kids, conceived with lesbian friends; one is a child he fathered and coparents with a close female friend (similar to the arrangement Ertman describes with Victor), and his youngest is his genetic son, born to a surrogate who is also one of the mothers of his husband’s genetic children. All of the children I’ve mentioned here—my daughter, Ertman’s son, Solomon and his husband’s daughters and sons—were born through some form of ART, without which we would not have been able to form our Plan B families. Ertman describes the gleeful sense of “getting away with something” she felt at the fertility clinic with Victor, “so different from the embarrassment and inadequacy” she imagined in the minds of the straight couples around them. “For gay people,” she writes, “simply being here is a triumph.”
It took me longer to feel this way, but now I am empowered by ART, too—not only by its outcome, the wonder of life with my daughter and ability to choose when or if I might have another child, but more abstractly by the way ART requires a decision, a commitment, the way it foils the limited human body. The way it draws me into common cause with people like Solomon and Ertman.
How to begin? Gabe and Todd wondered as they made the decision to become parents. For LGBT couples, the question has long been more complicated than for straight couples pursuing Plan B families. Post-Obergefell, adoption became more accessible in all states except Mississippi, which forbade same-sex adoption until a federal court ruling lifted the unconstitutional ban. But several states have introduced bills allowing agencies providing foster-care and adoption services to discriminate on religious grounds, and only seven states explicitly protect LGBT families from discrimination by foster-care agencies. Before the 2015 Supreme Court decision, some states would not allow such an adoption at all, and families were forced into compromises that did not protect parents or kids in the case of medical emergencies, educational decisions, inheritance, and other matters straight adoptive parents take for granted.
In North Carolina, as in other states, same-sex marriage and LGBT parenting rights have been intricately linked, even as same-sex couples parented long before they could access the same rights and recognitions as straight parents. As an amicus brief filed in support of Obergefell argued, same-sex couples are three times more likely to parent adopted or foster children.
Shawn Long, director of operations at Equality NC, a nonprofit organization dedicated to LGBT rights, became a father eight years ago, when he and his partner adopted a five-year-old boy from the foster-care system. “His name is Isaiah,” Shawn told me, with the same slight pause and proud emphasis I use when pronouncing my daughter’s name. “He’s my heart.”
Shawn and his partner, Craig Johnson, were the first gay men to seek adoption through foster care in Wake County, North Carolina, and, while they found that the social-services professionals and other couples in their foster-adoption education program were welcoming and supportive, Shawn and Craig were also the last couple in their cohort to be matched by social workers with a child. As an unmarried couple—same-sex marriage was still unrecognized in North Carolina—they were unable to adopt their son together, even though they’d been a foster family by then for six months. They decided together that Craig would be the adoptive parent, and, although they established protective legal paperwork and continued to live as before, it pained Shawn to go “from a foster parent to a total legal stranger,” he said. Shawn and Craig joined several other plaintiffs in a lawsuit filed by the ACLU challenging North Carolina’s constitutional amendment forbidding same-sex marriage.
And they won. On October 10, 2014, a federal judge ruled North Carolina’s same-sex marriage ban unconstitutional. Shawn and Craig had planned to be among the first couples in line at the magistrate’s office, but, as it happened, family life intervened—Isaiah had an out-of-town soccer tournament that day. They were married the following Monday, with Isaiah in attendance, and now have the same rights as any other soccer dads. “We’ve been together twenty years,” Shawn said, “but we’re looking forward to our first anniversary.”
As in Obergefell v. Hodges, the presence of children in the lives of the North Carolina plaintiffs was a significant factor in the way the case appeared to the public. Amendment 1, the state’s primary-season ballot initiative banning same-sex marriage, passed overwhelmingly in 2012, but since then LGBT families, with their underlying Plan B structures, have become more outspoken and visible. “Discrimination is an education issue,” Shawn told me. “When you can say, ‘These are our families. We are parents. These are our children. We’re trying to protect them,’ people’s hearts are more open.”
Still, he noted, same-sex couples often face discrimination and prejudice when they seek adoptions—from social workers who might think a heterosexual couple would make better parents, or private agencies that willfully discriminate. This potentially treacherous landscape gave Gabe and Todd pause. Some of the largest American domestic adoption agencies refuse to work with LGBT couples and individuals (the largest, Bethany Christian Services, pledges to make decisions “consistent with Biblical principles” and does not work with LGBT couples); following Obergefell, it’s possible additional states will pass so-called religious-liberty laws allowing adoption agencies to refuse placement of children with same-sex couples (Michigan passed such a law in June, before the Supreme Court decision). And, according to a Human Rights Campaign overview of LGBT adoption choices, thanks to cultural prejudices and discriminatory international laws, “it is very difficult to pursue an international adoption as an openly same-sex couple, or as an openly single LGBT person.” Many of the most popular countries for adoptive parents from the United States (Guatemala, China, Ethiopia, South Korea, and Russia) explicitly prohibit same-sex couples and single parents from adopting; neither of the two countries Richard and I considered (Ethiopia and Haiti) would have allowed Gabe and Todd to adopt.
For Gabe and Todd to have a genetically related child would require surrogacy, an approach to conception so expensive and legally complex that it has become the primary focus of more than one boutique law firm. A major source of this legal complexity is the variance of laws from state to state, and in North Carolina, the law is particularly unclear: no statute regulates gestational surrogacy, in which an embryo is created with a donor egg and gestated by a contractually bound surrogate.
For Gabe, having a genetically linked child is emotionally compelling. His father, an only child, is a Holocaust survivor; Gabe’s mother is an only child too. But, more than a desire to continue the family line, Gabe said, what he and Todd really want is “to raise a human being from moment one.” The best way to achieve this goal, they decided, is gestational surrogacy. They agreed that Gabe would provide the male gametes—a genetic relationship was less important to Todd—and he began the screening process, getting tested for heritable genetic abnormalities at a local clinic. The pornography selection in the clinic’s sperm-sample room was “comically heteronormative,” Gabe said, and the instructions about washing up were confusing, but everything worked out—he had strong swimmers and is not a genetic carrier for any of the diseases more common in Jewish bloodlines.
How and where to find a surrogate was the big question. Their close female friends were mostly too old or encumbered to ask or offer, and they didn’t have good candidates in their families either. They knew other couples who had hired American surrogates, but this had involved contracting with agencies and surrogates in other states and was also staggeringly expensive: about $150,000 in legal, agency, medical, and surrogate fees.
Gabe’s family is Israeli American, and he has a friend in Israel, Doron Mamet, who founded an international surrogacy operation, Tammuz, that matches intended parents, mostly from Israel but also the United States, many of them gay men, with surrogates in the United States, India, and at that time in Nepal. Gabe and Todd were interested in the Nepal program, in which Indian women (India prohibits surrogacy on behalf of same-sex couples) travel alone or with their families to live in Nepal under a medical tourist visa (Nepal prohibits surrogacy by its own citizens but not, at the time, by foreigners). The women are impregnated with embryos created from egg donors from South Africa (egg donation is illegal in Israel) and live in apartments in Kathmandu during the pregnancy, where they receive the same prenatal care as Western mothers. The practical and emotional challenges inherent in this program—the need for expensive and time-consuming travel, waiting while one’s child is gestated in a poor country halfway around the world—are reflected in its cost, about half the fees associated with American gestational surrogacy. Tammuz caters to gay men in particular and was founded in response to Israel’s restrictive surrogacy laws—only heterosexual couples are allowed to contract with Israeli surrogates.
“I wanted to be a parent my whole life,” Mamet tells a hopeful couple over Skype in a scene from Google Baby, a 2010 documentary about international surrogacy. “There is no reason because of what someone might think, that I am not worthy of being a parent, for me not to be a parent. So I went and became a parent. And I would be happy to help others to become parents.”
It’s hard to watch Google Baby without some degree of unease, and reviews were critical of the international baby market it exposes. Still, Mamet mentions the film (a 2011 Emmy award winner) on Tammuz International’s home page, as if the attention it generated were a sign of his company’s quality or, perhaps, as a way of owning up to the controversial nature of his work. I spoke to him over Skype, and he told me that, while Google Baby looks like one narrative, the film tells in fact three unconnected stories—the story of his meetings with clients, the story of American egg donors not connected to Tammuz, and the story of Indian surrogates who have never worked with Tammuz.
Critics responding to the film—and to international surrogacy in general—take issue with the lack of regulation surrounding the process, the Indian surrogate mothers’ lack of economic and medical agency (payments are made to their husbands, and they are routinely given medically unnecessary cesarean sections), the blithely businesslike attitude of an IVF clinician/obstetrician who appears in the film (she takes a phone call while stitching up a postbirth surrogate), and the way the whole process reads like a metaphor for globalization at its most extreme.
Though recorded forms of surrogacy date back to the Old Testament, when Sarah instructed Abraham to have a child with their maidservant, contemporary views of contractual surrogacy tend to emphasize its dystopian and futuristic qualities, as well as people’s discomfort with any agreement that would compel a gestational or genetic mother to give away her baby. I remember reading Margaret Atwood’s The Handmaid’s Tale when I was in seventh grade (I borrowed the novel from my mother, possibly without her knowledge) and feeling terrified by the society she envisions: a militaristic Christian theocracy in which wealthy and powerful couples force fertile young women to live in their homes, have sex with the husbands, and bear children for the couples to raise as their own.
Atwood has written that she felt a great deal of anxiety before the book was released, but it was critically well received and quickly became a bestseller. It was published in the United States in February 1986, coincidentally just one month before the birth of “Baby M,” the child at the center of a court battle that brought ethical and legal considerations of surrogacy to worldwide attention. Baby M was born to Mary Beth Whitehead, a Jersey Shore woman who entered into a traditional (as opposed to gestational) surrogacy agreement with William and Elizabeth Stern, an infertile couple from prosperous Tenafly. Whitehead was inseminated with William Stern’s sperm and decided at the birth that she wanted to dissolve their $10,000 agreement and keep the child. The case—which ultimately returned Baby M to the Sterns while preserving visitation rights for Whitehead—was for many a reminder of what can happen when poor women are bodily exploited, as in Atwood’s novel, by the wealthy. In response, several U.S. states banned compensated surrogacy entirely. Gestational surrogacy, in which the surrogate carries no genetic link to the child, became the default practice in places like California, where compensated surrogacy was still legal.
Many feminists responding to the Baby M case sided with Ms. Whitehead, who was subject, via the custody case, to a troubling assessment of her fitness as a mother that evaluated everything from the toys she gave her baby to her own choice to dye her hair. A group of women writers from New York drafted an open letter that declared, “By these standards we are all unfit mothers.” It was signed by more than one hundred women, including Betty Friedan, Gloria Steinem, Nora Ephron, and Meryl Streep.
I would have sided with Mary Beth Whitehead too. I still would—it’s hard to imagine that she could have predicted how she’d feel giving up her child when she signed away her rights before the child was even conceived, before she carried it in her body for nine long months. That doesn’t mean I don’t also feel empathy for the intended parents—especially Elizabeth Stern, a pediatrician whose legal status as a mother was revoked and unacknowledged by the courts, even as she raised the child to adulthood in her home—and for Baby M, whose first months of life were full of globally documented public upheaval.
Martha Ertman insists it is possible to arrange surrogacy-for-hire that protects the surrogate, the intended parents, and the child: make sure it’s gestational and in a state that honors surrogacy contracts, and you won’t have a problem, because “people generally give and get what they expect.” But when your baby is gestated thousands of miles away, by an uneducated woman in a developing country, how do you know that your surrogate is fully informed, that she isn’t subject to exploitation? How do you know that she won’t feel an abiding sorrow when the infant is carried out of the delivery room?
Gabe told me what he hoped, and what he’d been told by Mamet—that the women in Nepal lived comfortably, that they were able to make their lives better, to buy houses and educate their own children. But, he admitted, “you don’t know. You can’t know.”
Mamet, whose two children were birthed by American surrogates, told me that his only ethical concern about using Indian women as Tammuz surrogates is one of choice—he isn’t sure that the women aren’t pressured by their husbands and families to do the work. “I can’t tell,” he said. “But I can’t tell that about an American [woman] either.”
Tammuz International made the news again in April 2015, when a magnitude 7.8 earthquake shook Nepal, killing 8,800 people and injuring more than 23,000. None of the company’s Kathmandu-based surrogates or staff were injured, but a number of babies were born during the quake’s aftermath, which included, for a time, powerful aftershocks every fifteen to twenty minutes. A few babies were born prematurely, and all survived, thanks to dedicated Nepali nurses who kept them warm and safe in heated cars in the hospital’s parking lot. Some babies had been born days and weeks before and were living already with their intended parents, mostly Israeli couples, who were still in the process of obtaining the passports and birth certificates they needed to take their babies home.
Nepal is a popular tourist destination for Israelis, who are attracted to the beautiful scenery and the chance to hike Mt. Everest. Because of Israel’s restrictive antigay surrogacy laws, and the growing business Doron Mamet founded, it also became the go-to destination for a practically and ethically complicated form of medical tourism. All told, there were 229 Israeli hikers, tourists, parents, and newborns in and around the earthquake’s epicenter. Israel’s government dispatched rescue teams and set up field camps to take care of quake victims. It evacuated the Israeli citizens, including the vulnerable newborns, but left the Indian surrogates—at least fifteen post birth and more than eighty who were still pregnant.
How to read this story? For some, Israel’s airlift of only its own citizens was an example of Western callousness and chauvinism, the field hospitals simply a cover for an exploitative baby market. For others—especially the parents of the newborns—it was a chance to expose the discrimination that allows only heterosexual couples to build families through surrogacy at home. But the story was also reported widely because it just sounds so exotic and strange—sperm from Israel, eggs from South Africa, surrogates from India, an earthquake in Nepal. On NPR’s website, a photo of two hospital-gowned fathers holding their tiny son appeared with the caption “Now this is an international baby.”
When he heard about the earthquake, Gabe asked Todd if he would still go through with the surrogacy in Nepal, provided things went back to normal. Todd said yes, and Gabe agreed. But going back to normal would mean more than rebuilding hospitals or getting past aftershocks (a strong one hit Nepal just two weeks later, killing another two hundred people). For the program to continue, it would have to survive the increased scrutiny that the earthquake and baby airlift generated. Thailand, another low-regulation developing country that once had a thriving surrogacy market, banned international surrogacy in 2015 after two major scandals: the alleged abandonment of a child with Down syndrome by an Australian couple (his surrogate mother is now raising him), and the bizarre case of a Japanese man who fathered sixteen children through Thai surrogates.
Continuing international surrogacy in Nepal would depend on how the story was read: Did Nepal need better fertility-tourism regulations? Should it be in the business of surrogacy at all? Does Israel need to change its own laws so that everyone can access surrogacy?
These questions remind me of our experience considering international adoption. The programs we could afford with the shortest wait times and youngest children were also the least regulated. Did I think those countries should suspend or slow their programs? Yes, I did. Was I disappointed when I heard that they had? Yes, I was.
Most forms of Plan B family making include contracts of one kind or another. At the beginning of our IVF cycle, Richard and I signed contracts with an agency that wrote our cost-share agreement (an expensive partial-refund guarantee) and with the clinic responsible for creating and storing our embryos. Among the questions we had to decide before my egg retrieval: what we would do with any unused embryos and what to do in case of divorce. I looked at our cost-share agreement recently and was surprised to find important details I don’t remember reading or agreeing to—for example, that we would allow our doctor to transfer the number of embryos he thought best—but my signature is at the bottom of the page, right next to Richard’s.
Compared with much of the world, we’re exceedingly well equipped to evaluate contracts. Our ability to read and write, and the fact that any agreement we’re expected to enter into is communicated to us in our native tongue, make us different from, for example, many of the surrogates who contract with agencies like Doron Mamet’s. And still we overlooked things—not because we were cavalier or careless, but because we felt we had no other choice.
One of the paradoxes of Plan B family creation is that, despite the nonaccidental nature of the endeavor, the months and years of waiting and planning, the parties with the most at stake are often met by professionals who have a financial interest in moving things along. Adoptive parents-to-be are given minimal time to decide whether to retrieve a child from a hospital or orphanage; domestically, they are counseled to adopt in states that give birth mothers the smallest window of time for thinking about what it means to give up parental rights. ART patients are often not well informed at the beginning of the process about all of the medical and legal decisions they’ll have to make on short notice. For LGBT parents-to-be, decisions made on the journey to parenthood are further complicated by a legal system that does not always recognize their rights, which can pressure them to accept whatever option is offered.
The only direct commentary from Google Baby’s director, Zippi Brand Frank, comes at the beginning of the film, via epigraph: “In the 60s, the introduction of the birth control pill took the risk of ‘making babies’ out of sex. Today, new technologies have taken sex out of the act of ‘making babies.’” The absence of sex from the creation of life—test-tube babies stored in vats of liquid nitrogen—seems like old news to me. Instead, the most disturbing element of the film is the feeling that nothing is governed by rules and everything is rushed. Mamet counsels his clients over the phone or Skype and is surprised when three different couples agree to the suggestion, over the phone, that they transfer embryos to two surrogates at a time, increasing their odds of conception. In an IVF/OB clinic in Delhi, cesarean sections happen on screen in a matter of minutes, and the babies are whisked away after the briefest of glimpses from their surrogate mothers. “You’re happy? Happy or not?” the obstetrician briskly asks a sedated woman who is silently weeping as the baby she carried is cleaned on a nearby table. The surrogate is not allowed even a moment of loss.
The imbalance of power inherent in the global surrogacy market is not merely a product of finances—the fact that surrogacy can be arranged in India, Mexico, or Nepal for about half what it would cost at home—but also of a confusing and often discriminatory legal landscape in the developed countries where the clients live. Israel has some LGBT-friendly laws and a profamily atmosphere that many same-sex couples find welcoming, but family law is decided by conservative rabbinical courts, and surrogacy for same-sex couples is a nonstarter. Ireland, which voted overwhelmingly to legalize same-sex marriage in 2015, forbids surrogacy and only recently began allowing adoption by same-sex couples. In the United States, the state-by-state landscape of surrogacy laws is varied and often unclear. And the fact that Gabe and Todd can’t contract with a paid surrogate in their home state certainly increases the cost and inconvenience of surrogacy in California or Illinois.
So would-be parents are pushed into unregulated markets, where they enter into contracts with women whose greatest economic power resides in what their bodies can do—accept and grow an embryo from a few cells into a healthy baby.
“It would be completely disingenuous for anyone to suggest that the mercantile impulse isn’t at play here,” Gabe told me in an email. “But then again it’s also at play—and in far more unregulated and even darker ways—with everything else Westerners buy through the globalized marketplace, which is to say almost literally everything.”
Ideally, a younger friend would offer to take on Gabe and Todd’s surrogacy. Briefly, I imagine myself as that heroic woman—what a gift that would be for two people I know will make excellent fathers. But then I think about timing (I’m nearing forty) and health risks and the all-consuming condition of being pregnant, and the situation starts to seem less cozy and altruistic than terrifying. Parul Goetz, who talked to me about her decision to adopt, considered surrogacy after her sister offered to carry her baby. But, she told me, “then I thought, I can’t ask her to do that, and if I can’t ask my own sister, how can I ask a stranger?”
That line of reasoning, informed by her own experiences with multiple pregnancies and miscarriages, led her to adopt domestically. For Gabe and Todd, the adoption of a newborn—asking a birth mother to give up her genetically related child—might be ethically more complicated than contractual surrogacy. I’m not sure I would have been comfortable with either choice, but then, I had an easier option available. Because I’ve been where Todd and Gabe are, where Nate and Parul once were—on the cusp of Plan B—I don’t judge their choices. I can’t.
It is now possible for almost anyone with resources to become a parent, through ART or other means. Couples strained by years of infertility can choose new treatment options, including preimplantation genetic screening of embryos or gene therapies that replace disease-carrying mitochondria with DNA from a third party. They can select donor eggs, sperm, or embryos. Single women and lesbians can choose from vast donor databases or opt for insemination from a known donor, in a clinic or at home, using a drugstore syringe. Couples and individuals can adopt domestically through private agencies or the foster-care system, or they can work with agencies and orphanages from all parts of the world. Gay men and lesbians or straight women can create unusual family arrangements through surrogacy and donor insemination agreements like the ones arranged by Solomon or Ertman, or they can combine one partner’s sperm with donated eggs and have the embryos flown across the world to be gestated by a stranger.
The ever-expanding definition of parenthood is threatening to some, who emphasize the value of biological parenthood. But even the definition of biological has changed. We now know that every one of the parenting situations described above is biological, even at a genetic level, as the conditions we create as we raise children affect them right down to the expression of their DNA.
“The story of my life is constant evolution of identity,” Gabe told me recently. “I’m constantly letting go of, or trying to let go of, the person I thought I was going to be.”
This is also the story of marriage equality and reproductive equality—constant evolution, constant expansion. The use of reproductive technologies in expanding the public image of parent hood has been part of that evolving story. Martha Ertman wrote that she’d for a long time “wished that two eggs could make a baby, so that my lady love and I could have a child genetically linked to both of us.” That was impossible, so she turned to reproductive technology; Ertman and her wife now represent one of the nearly 122,000 same-sex American households raising 210,000 American children.
But even as one reality (Plan B parenthood) supports another (same-sex marriage), and vice versa, our laws have not caught up, and parents, children, and would-be parents are suffering. Adoption can still be more complicated, and more expensive, for same-sex couples, who may also experience bias from adoption and foster-care agencies, particularly in states allowing religious-liberty exemptions. Same-sex couples who marry, perhaps in the hope of providing additional stability to their children, or before starting a family through ART or other means, can be fired from their jobs in more than half of the United States. ART has been a frequent target of restriction, whether through personhood amendments restricting IVF for everyone or attempts to restrict IVF and ART to married heterosexual couples.
When I became a teacher, I was taught to differentiate my instruction. Every lesson, every assessment, needed to consider not just the majority of the room but every student and how she learned and expressed herself best. At first this felt like an impossible task, time consuming and unnatural. I had to create multiple sets of materials, give multiple kinds of homework and assessments, and it was difficult for me to imagine what would work best for the students who weren’t reached the old-fashioned way. I’d been that kind of old-fashioned student, content to sit in a chair, read from a textbook, and take traditional written tests (which was largely how my K–12 education was conducted). But I tried to do what my education professors asked, and I found that they were right: adapting my classroom wasn’t as hard as I feared, and it paid off. Everyone learned better this way—by expanding my instruction to meet the needs of a few, I improved outcomes for all my students. A bonus: the kids were happier.
Our legal system doesn’t guarantee happiness (only its pursuit, ostensibly), but legislating inclusivity seems to work the same way, at least where marriage and parenting are concerned. “Pluralistic regulation better serves the purposes of family law,” Douglas NeJaime told me. Which is? I asked. In part, NeJaime said, it’s about “recognizing and supporting the various dependency relationships that we form, which often take the form of parent-child and spousal relationships—long supported by law—but increasingly take the form of other arrangements.” When we regulate inclusively, we endeavor to protect everyone—children, same-sex couples, different-sex couples, donors, birth mothers, surrogates.
It’s possible, after Obergefell, that North Carolina will consider the need to protect families that begin in surrogacy arrangements and will regulate accordingly. But for Gabe and Todd, who are ready to start their family now, that will be too late. Uncomfortable with the ethical uncertainties, the unknowns, they changed their minds about working with a foreign agency—fortunate timing, as the Nepali Supreme Court suspended that country’s contractual surrogacy programs in late August 2015. Before the Nepal program’s suspension, they’d consulted with Mamet as well as several different U.S.-based agencies and clinics. They’re now hopeful about the possibility of contracting with an American surrogate—someone, Gabe says, with whom they could form a meaningful relationship.
I asked Gabe if he’d thought about what he and Todd will tell their potential child one day about the way he or she came into the world. “We’ll be very up front with this kid,” he said. He imagines telling the whole story once the child is old enough to understand, and also facilitating contact, at some point, with the egg donor and surrogate, if the women are open to that. “We’ll also say, you are our child, because that’s what we believe,” Gabe told me.
Gabe and Todd celebrated their second wedding anniversary a couple of weeks before the Supreme Court decision was announced. Gabe remembered the many discussions they had with Rabbi Shalhevet, who performed their ceremony, about the practice and meaning of various Jewish rituals, which they adapted to suit their circumstances. They shortened the hakafot, in which the couple circles one another seven times, to three rotations each around the other and one final rotation around each other simultaneously. For the ritual glass stomping, which can symbolize the intended length of matrimony (“as long as it would take for someone to gather each and every tiny shard created by the broken glass and try to reassemble the thing perfectly and seamlessly—an eternity,” Gabe explained), they used the more easily crushable lightbulb, as many modern couples do. Some rabbis don’t consider a marriage complete until the couple spends a few minutes alone together in a private room known as a yichud before joining the wedding festivities. There was no yichud at the restaurant where they married, so Gabe and Todd walked around the block, “giddy and amazed and excited and moved” by what they’d done. This seems to me a metaphor not just for their marriage but also for their birth-story-to-be—adaptive but also rooted in tradition, privately decided but informed by a public context.
“What a journey it had been,” Gabe said. “What a journey it continues to be.”