Surrogacy and Windsor's Penumbras
14 Pages Posted: 19 Jun 2015 Last revised: 25 Jun 2015
Date Written: June 17, 2015
What does the invalidation of the federal “Defense of Marriage Act” in United States v. Windsor mean for the legal treatment of compensated surrogacy? A recent symposium asks this question, and the most direct and compelling answer asserts that Windsor will have little impact on surrogacy, which state law governs. This invited response to the symposium adopts a wider lens. It looks beyond Windsor’s holding to consider what more we might learn from examining Windsor’s “penumbras” and “emanations” — specifically Windsor’s politics, its repronormativity, and its federalism.
Even with this expanded frame, the path from Windsor to significant surrogacy reform remains uncertain and obscure. Many surrogacy restrictions, like adoption restrictions, rest on policies that Windsor does not challenge. Further, the significance that Windsor accords to marriage and dignity, however broadly read, promises inclusion of gay and lesbian couples in the system of family law as it is, not fundamental transformation of that system itself.
Keywords: Marriage equality, Surrogacy, Assisted reproduction, Federalism in family law, Conflict of laws
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