Thinking about Surrogacy

I find myself starting a lot of sentences these days with: "Back when I was 20 and thought I had all the answers...." When I was 20, I was a Women's Studies major at the University of Massachusetts/Amherst, and surrogacy wasn't even a twinkle in most people's eyes yet. In fact, it was when I was in law school that the Baby M case was decided, which was the first time most of us had thought about surrogacy. I was outraged by that decision, whereby the "surrogate" who had carried the baby to term and given birth to her was found to have no parental rights whatsoever. As a woman, as a feminist, the concept that women could hire out our wombs without creating any legal relationship whatsoever with the resulting babies was, well, creepy. It seemed ... I don't know ... Orwellian or something. Too much like Margaret Atwood's The Handmaid's Tale. (If you aren't familiar with it, this is a novel from the 1980's, described on amazon.com as follows: "respected Canadian poet and novelist Atwood presents here a fable of the near future. In the Republic of Gilead, formerly the United States, far-right Schlafly/Falwell-type ideals have been carried to extremes in the monotheocratic government. The resulting society is a feminist's nightmare: women are strictly controlled, unable to have jobs or money and assigned to various classes: the chaste, childless Wives; the housekeeping Marthas; and the reproductive Handmaids, who turn their offspring over to the "morally fit" Wives.") As I say, surrogacy seemed creepy. Now, as I have matured, I find the surrogacy issue far more complex. I represent many gay men in my practice who have become parents through surrogacy, and it has been a joy to share this process with them. There are many states where adoption is hard or impossible for gay men due to some combination of sexism and homophobia, and surrogacy becomes the only way for men in these states to become parents. For many other men, the possibility of participating so intimately in bringing a child into the world would be only a dream without surrogacy, and helping make these dreams come true is one of the best things about doing the kind of law I do. But still.... I recently bought a refrigerator magnet that I've stuck on the file cabinet in my office. It says: "Believe those who seek the truth. Doubt those who find it." I continue to seek my full truth on the surrogacy issue. So, as we head into 2006, here are some of the "philosophical" surrogacy-related issues I continue to grapple with: What are the implications of moving toward pre-birth determinations of parenthood, in terms of abortion rights? In these times of increasingly scary attacks on a woman's right to procreative choice, aren't we aligning with the anti-abortion movement when we fight to have "unborn children" recognized as legal beings by the courts? If we get prebirth parentage orders for couples using surrogacy, does this mean they can prevent their "carriers" from getting an abortion? Should it? And while we're on the issue of the rights of gestational carriers, do we really believe that a woman who carries a baby to term and gives birth should have no legal rights whatsoever regarding that baby? As a woman who has given birth twice myself, I can attest that the experience of gestating a baby -- feeling it begin to move, sharing my blood, oxygen and nourishment with it for 8 months -- and then bringing it out into the world through childbirth -- is the most profoundly intimate experience of my life. Genetics, by my reckoning, is the least of it. So do we want the law to be that the woman who just did all that has no right to ever see the baby again, regardless of her heartfelt wishes and desires? Isn't there a very good reason that a woman can't consent to an adoption until after the baby is actually born? Should gestational carriers be afforded similar protections, if only in terms of having limited visitation rights if they want them? Is this a scenario where "open adoption" could be a model (i.e. where the intended parents get the baby, but the surrogate has the right to continued contact of some kind)? I don't have answers to these questions. Nor am I sure that clear "answers" exist. What I know is this: I intend to continue fighting hard for my clients involved in the surrogacy process, while I also continue to grapple with issues such as these, which once seemed so easy.... Happy New Year!

Holiday Greetings from Waldlaw

I wanted to send everyone who reads this blog warm holiday greetings. It has been quite a year, and next year promises to be equally exciting -- in both good ways and bad. Reflecting on the year gone by, this has been a year of great growth for me and mine. I launched my website almost a year ago, and have been amazed and thrilled by the difference it has made in my ability to reach people beyond my immediate circle of professional and personal acquaintances. I have to send out a huge "thank you!" to the designer and keeper of my website, Chris Dunaway, without whom I could never have made it all work. (For info on Chris and her business, go to http://www.hankmagee.com.) I finally have a computer network that actually works, thanks to my technical support person, Norm Meislich. And to all of you who read my blog, I have a confession and a special word of thanks. When I first started blogging, I was a true skeptic. The whole thing seemed like a gimmick -- the trend of the moment -- nothing to take seriously. But blogging has been an amazing experience for me in several ways: (1) it has given me a way to keep my website fresh and up-to-the-minute, without wearing out Chris; (2) it has given me a way to speak out about topics that interest and inspire me -- whether to joy or to anger -- without having to deal with the complexities of writing articles that I have to get published by others; and (3) it has allowed me to communicate in a much more meaningful and personal way with my clients, and on a much broader scale, than I otherwise could. It never ceases to amaze me how many people actually read my blog -- and it gives me great pleasure when a new client walks into my office already having a sense of my philosophy, and already feeling a sense of connection with me as a person, based on what they've read here. Not to mention the notes I get from older clients, and from friends, remarking on something I wrote in a blog posting. It makes me feel like I'm engaged in an on-going dialogue with a much larger community than I actually have time to keep in regular contact with -- and for that expanded community I am very grateful. So thank you to all of you who are reading this blog. Without you, waldlaw wouldn't be what it is today.

DANGER! The Next Wave of Anti-Gay Amendments is Likely to Target Gay Adoptions!

Sorry for the lapse in blogging-- I spent last weekend at a national LGBT Family Law roundtable, and then spent this week catching up on both work and life. So here's the most alarming news from the national roundtable: Rumor has it that 4-6 states are currently considering constitutional amendments to ban gay adoptions. The states currently considering amendments are: Alabama, Georgia, Kentucky, Tennessee, Missouri and Ohio. It is the sense of the national LGBT organizations that as the current wave of amendments banning gay marriage winds down, the next wave will be amendments banning gay adoptions. This is truly scary. And we need to be thinking now about how we're going to fight these amendments, even before they are actually proposed. Here's why: The Right can win this war with soundbytes. They can scare the public into supporting legislation that is blatantly anti-child and anti-family with pure rhetoric. And we can't fight them on that level. In order to win this war, we have to actually educate the general public about who gay families are. They need to see us, see our children, talk to us and spend time with our kids and go to school and church/temple with us. They need to realize that we are on the PTA with them, we shop at the same supermarkets they shop at, we sit next to them in church/temple, we go to the same parks they go to and our children play on the same Little League teams as theirs. Only actually knowing us will make them realize how wrong this type of legislation is. And that takes time. We have time now. We can start now. We can be more out, more active in our children's schools, more open with our neighbors and our extended families around the country about the realities of our lives. We don't necessarily have to join new organizations to make an impact -- we can make an impact by just being who we are in public, and doing it well. If we wait until the amendments are already on the ballots, it will be too late. So as you're making New Years resolutions, please make this one of them: gay, straight or bi, please make a point in the New Year of sharing your experiences of being in a gay family, and/or of having gay families in your community of friends, colleagues and neighbors, with someone who is unaware that gay families are positive places for children. Please talk to friends and family members in other states about these issues. Please help begin a grassroots educational movement that can defeat the alarmist soundbytes we are sure to start hearing once amendments are actually introduced. We can win this war -- we must win this war -- by starting NOW.