Assisted Reproduction Inequality and Marriage Equality

Abstract

In Obergefell v. Hodges, Justice Kennedy declared that “marriage is fundamental under the Constitution and [should] apply with equal force to same sex couples.” This essay examines how the advent of marriage equality may impact the rights of same sex couples to have biological children via assisted reproduction and surrogacy. Specifically, I point out the ways that the Obergefell decision affects the law of infertility. By the law of infertility, I mean the laws that require insurance coverage of infertility treatments and other assisted reproductive technologies (“ART”). Because same sex couples are not able to have biological children with each other without ART, they are functionally infertile. However, insurance companies and state statutes use a medical definition of infertility. I suggest that this conception must change in order for same sex couples to enjoy the same ART benefits that heterosexual couples enjoy. I examine the Obergefell decision as a backdrop for the impetus for legal change in the realm of increased access to ART. I note how infertility treatment is provided in the United States and the potential roadblocks for same sex couples. Then, I discuss the opportunities and challenges for biological parenthood via surrogacy for same sex couples and advocate for reform efforts to accommodate for same sex access to these services. I finally suggest community engagement and activism in this realm to open up ART beyond its typically white, upper-middle-class patrons to all of those who wish to have a biological child, regardless of their wealth or race.

Keywords: assisted reproduction, marriage equality, infertility