The New Incubators

How Same-Sex Marriage Is Changing the World of Surrogacy

Illinois residents Adam Stachowiak and Mike Isaac joined in a civil union eight years ago, and last year, after the state legalized gay marriage, they decided it was time for children. So they made an arrangement with a woman who agreed to be a surrogate mother, and the two men are now the parents of fraternal twin boys, Kaleb Isaac and Keegan Stachowiak.¹ "We laugh about when we go to Disney World, Adam will be the 'fun dad' since he loves to ride roller coasters," Isaac told Crain's Chicago Business before the boys were born. "And I will be the dad who lets the kids enjoy cotton candy and elephant ears."²

Now that marriage is well on its way to being redefined, parenthood is next in line. It's showing up in the surrogacy industry, which observers say has more than doubled in size over the past five years, despite the fact that surrogacy has traditionally been neither the most popular nor the most accessible solution to infertility, the costs alone running from $40,000 to $120,000, including medical and legal bills. Yet these days the demand for qualified surrogates is well ahead of supply, partly due to demand for the service from male homosexual couples.

Shirley Zager, founder of Parenting Partners, a surrogacy agency in Gurnee, Illinois, and a volunteer coordinator for the Organization of Parents Through Surrogacy, told the Chicago Tribune that when she first opened her agency, it was the only one in Illinois. "Now there's practically an agency on every corner," she said.³

In 2004, Massachusetts became the first state to recognize same-sex marriage; also that year, 738 babies were born through gestational surrogacy, according to the Society for Reproductive Medicine. This was not much higher than it had been in previous years, though the industry had been growing steadily since the 1950s. However, the past five years have seen a leap. Now, some 1,600 children a year are born through gestational surrogacy.

The surrogacy industry is quickly becoming an enterprise designed to accommodate gays and encourage their societal acceptance. Lesbians, obviously, seldom need or want the service, but it is often the first and optimal choice for gay men. Surrogacy is more expensive than adoption, but it offers the otherwise-impossible prospect of having a child that is biologically related to one of the men.

And both the law and the industry are responding. Megan Cohen, who works at the Family Formation Law Office, is one of a growing group of lawyers who are pushing for a broader definition of parent, one based purely on "intent"—specifically: "the one who intends to be the parent at the time of conception." Certain states, such as Illinois and California, have already recognized this. As with marriage, the sole qualification for homosexuals to have biologically related children is desire; wanting a child makes them entitled to have one.

Surrogacy Methods

There are two methods of surrogacy. The first is traditional, where the surrogate is inseminated with the father's sperm; despite being the biological mother, the surrogate agrees by contract to give the child up at birth. In the second form, gestational surrogacy, the mother undergoes in vitro fertilization, where she is implanted with several embryos which were fertilized in a Petri dish with a man's sperm and another woman's eggs. In this method, the child has no genetic ties to the surrogate. Gestational surrogacy is often preferred over traditional surrogacy because it supposedly minimizes emotional "complications" for the surrogate mother regarding the child she is carrying.

According to Cohen, a male couple will at times arrange it so they won't know which of them is the biological father of the child. They do this typically by both contributing sperm to fertilize numerous eggs, all or several of which are implanted into the surrogate. Most of the implanted embryos are expected to die, but—as in the case of Stachowiak and Isaac, who both contributed sperm—fraternal twins are not uncommon.

Accommodating Laws

Surrogacy laws across the country are a patchwork of restrictions, voids, penalties, and in a few places—including Arizona, Michigan, and the District of Columbia—outright bans. The number of bills being introduced to loosen surrogacy laws has increased over the past decade, with wide support from homosexual advocacy groups.

For instance, the Gay and Lesbian Activist Alliance (GLAA) has been pushing to overturn the District of Columbia's ban on surrogacy arrangements. GLAA President Richard Rosendall says that gay male couples are the primary driving force behind the push for new legislation, largely because they will benefit the most. "The increased legal protections they have received (especially the marriage victory) has put [surrogacy] in higher relief," he added.

Where such legislation has been introduced, it tends to give preference to gestational surrogacy because traditional surrogacy creates legal minefields. For example, since the traditional surrogate shares a genetic bond with the child, she is listed as the mother on the birth certificate unless the intended mother completes a stepparent adoption process.

The law in Illinois, regarded as one of the most surrogacy-friendly states, stipulates that the surrogate may not supply her own eggs and that at least one of the intended parents must be genetically related to the child. Thus, only gestational surrogacy is protected in the law. Although exact numbers aren't available, gay males are believed to make up over half of the surrogacy customers in Illinois.

While surrogate children tend to be related to at least one of their adopted parents, the industry allows for both sperm and egg to be donated. Like the characters in Huxley's Brave New World, customers may make selections from among a variety of donors, customizing their child by blood type, hair color, and other traits. Prospective parents are essentially enabled to purchase a made-to-order baby, without needing to provide egg, sperm, or womb themselves—only cash.

Concerns abound that this will lead—indeed, already has led—to the exploitation of women and children. Women are treated merely as a gestational resource whose value is based on their biological capacity to act as human incubators. Nevertheless, even in the most surrogate-friendly states it is difficult for a woman to qualify to be a surrogate. Typically, candidates are required to undergo mental examinations, and they must have a separate source of income. According to the Surrogacy SOURCE website, the average compensation for a surrogate mother is $30,000–$40,000.

The Irony of Gay Infertility

While surrogate mothers have diverse backgrounds and income levels, many of them have one thing in common: "Working in adoption and surrogacy, what I have seen to be interesting is an increase in surrogates who really want to work with same-sex couples specifically," says Cohen. "They also really like the idea of helping someone who literally cannot biologically create a family of their own. That's just in the last five years." Cohen points to the perception that same-sex couples have overcome enormous barriers to be together, and says that "there's something really appealing about that for some women."

In legal terms, homosexual couples are categorized as "infertile," although the better term to describe their unions would be "sterile." Indeed, as their willingness to donate sperm suggests, gay individuals are far from infertile. And yet homosexual couples are treated as though they suffered from the same affliction as infertile heterosexual couples, whose condition results not from the inherent nature of their union, which was designed for procreation, but from a physical ailment or impediment that they cannot help.

When a healthy heterosexual couple learns they cannot produce offspring, it comes as a shock. Many married couples experience feelings of shame, failure, depression, and even desperation from their inability to conceive. But for the homosexual couple, their very union is a public statement of their sterile sexuality—a sexuality that by definition eliminates the natural expectation of children. Their "plight" does not compare with that of the husband and wife struggling with infertility and experiencing the torment of not being able to conceive children they very much want to have.

Ironically, and oddly, a demographic that has no desire for the female body still desires the fruits of its sexuality. Gay male couples whose version of a fulfilling marital relationship includes building some semblance of a family need to add a relationship with a third party—a willing woman—into the mix. Even if Adam and Steve establish a stable and socially acceptable relationship, they still require Eve. •

Notes
1. Naperville Sun (June 9, 2014): http://tinyurl.com/kpbmjpw.
2. Crain's Chicago Business (Feb. 4, 2013): http://tinyurl.com/mcen4uh.
3. Chicago Tribune (Oct. 9, 2013): http://tinyurl.com/pbxuyqt.