Surrogacy Could Be Denied Gays and Single Parents in Louisiana

The legal contract between consenting adults known as marriage is not the only enforceable covenant that select groups of people will be denied, if Louisiana Gov. Bobby Jindal, a Republican, signs off on a bill introduced in that state's house by a Democratic lawmaker and passed by a majority of state lawmakers on both sides of the aisle.

Gay and lesbian families are denied marriage equality in Louisiana. Senate Bill 162 will see to it that single would-be mothers and fathers, same-sex couples, and cohabiting unmarried heterosexuals are all barred from entering into surrogacy contracts, as are married heterosexual couples in which at least one partner is infertile. This is the case due to the bill's requirement that both "intended parents" provide genetic material to conceive the fetus that the surrogate would carry.

The bill "was introduced by Senator Gary Smith (D-Norco) and is intended to clear up what supporters have called Louisiana's vague rules on surrogacy in order to make clear those who are eligible, the role of the parties involved and their claims to legal protection," reported care2.

But one of the law's most overt effects was quickly identified by the site's story, which was titled "Louisiana Uses Surrogacy Reform to Attack Gay Rights."

"While under current Louisiana state law, same-sex couples are banned from marrying and therefore adopting children, same-sex couples can at the moment still contract with a surrogate," the article noted.

The article also assigned homophobic animosity to an amendment attached to the legislation by a Republican lawmaker, Frank Hoffmann. The amendment read, "If the United States Supreme Court finds that Article XII, Section 15 of the Louisiana Constitution of 1974 or the Federal Defense of Marriage Act, defining marriage as the union between one man and one woman, is unconstitutional, the provisions of this Act shall be null, void, and given no effect."

The amendment, if kept, would have served as a backhanded slap in the face for straight, married Louisianans, Equality Louisiana pointed out.

"It's hard to overstate how bizarre and spiteful this is," a May 25 posting at the Equality Louisiana website read. "Although the bill as written doesn't actually help many families, the people it does benefit don't deserve to have the rug pulled out from under them if the Supreme Court makes a ruling completely unrelated to the state of Louisiana or the issue of surrogacy.

"Even forcing Louisiana to recognize same-sex marriage still wouldn't permit same-sex couples to conceive children with the help of a surrogate under this bill, because of the requirement that both intended parents donate gametes - this would be biologically impossible for a same-sex couple to accomplish," the post continued.

Added the posting, "The only people this provision can actually hurt are, in fact, the families this law was written to benefit."

The amendment was thrown out after review by a committee. Equality Louisiana praised the outcome and called Hoffman's amendment "legislative gay-bashing."

The bill's purported intention is to clear up uncertainty around the legal rights of surrogate mothers and would-be parents alike, as well as the husbands of the surrogates.

The bill has sparked criticism from both ends of the political spectrum, with groups that are typically anti-gay anyway rejecting the legislation on the grounds that surrogacy is "anti-life." This argument arises from the fact that surrogacy generates more embryos than are actually implanted. Religious conservatives regard fertilized human ova as human organisms in their own right, a view that is supported by the fact that the complete human genetic code is present in fertilized ova.

But groups concerned with social justice and equity have also expressed deep reservations, according to the New Orleans newspaper the Times-Picayune reported.

"Kathleen Sloan of the National Organization for Women, or NOW, and Jennifer Lahl from the Center for Bioethics and Culture also came out against the bill, saying it 'turns women into exploitable commodities through financial inducement,' " the article said.

The fact that Hoffman's amendment was jettisoned "keeps the door open for gay couples to enter into surrogacy contracts, but only if the U.S. Supreme Court overturns the act, thus requiring Louisiana to recognize gay marriages performed in other states," noted the Times-Picayune.

The court is expected to announce its decision on the DOMA case, as well as another case on California's Proposition 8, by the end of this month. Proposition 8 is the anti-gay 2008 ballot initiative that snatched marriage equality from same-sex families after the measure was approved at the ballot box following record-smashing financial and volunteer support that poured into the state, much of it organized and provided by the Mormon Church. Marriage equality advocates countered with a similar push, but lost by a narrow margin.

"So, if you live in Louisiana and you're single or you're a same-gender couple and you're thinking of having a child by surrogacy, you better do it now while it's legal to do so," summarized an opinion piece written by Barb Hamp Weicksel that appeared on June 4 at San Diego Gay & Lesbian News.com.

"This bill makes sure that gays and lesbians and unmarried people who really want children and cannot have them," the opinion piece added, "will never have their children in the state of Louisiana."

Hamp Weicksel contrasted the Louisiana measure with a more progressive effort in Nebraska, where "the state Judiciary Committee voted last Friday to advance a bill (LB 385) that would change current state law regarding gays, lesbians and unrelated, unmarried adults who live together on becoming foster parents. Current law bans said people from fostering children."

The bill's sponsor, Gary Smith, and his wife themselves have two children by surrogacy.

The bill "differs from most surrogacy contracts in that it gives the 'carrier' of the child - not the 'intended parents' - discretion in making all medical decisions. It also requires that the intended parents accept the child, regardless of any physical problems and that the surrogate surrender the child at birth," noted a June 6 editorial in the Shreveport Times.

"Although anyone can engage in surrogacy under current state law, only those who enter into a contract under the terms of the legislation would have an enforceable contract," the editorial read.