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Throughout American history, government has used the law to deny some citizens the right to create or sustain families with children to show contempt for those citizens. As LGBT people fought for dignity, equality, and justice from Stonewall to the present, one of the greatest success stories of that fight is the change in how the law defines and protects families. Into the 1990s, people in same-sex relationships had cause to fear that their sexual orientation could be used to deprive them of custody of their children. Now, many states, through statute or case law, routinely recognize two parents of the same sex for a child, and some explicitly forbid discrimination on the basis of sexual orientation in adoption. Still, others are slowly taking steps to level the assisted reproduction playing field for same-sex couples through their laws and policies.
This Essay focuses on a particular aspect of the world of family building for LGBT people, which is the use of gestational surrogacy to create families with children. Within the LGBT community, gay men are the most frequent users of this practice because they must find a woman willing to gestate a child if the fathers desire genetic connection. The ethical concerns about hiring a gestational surrogate increase when the arrangement involves cross-border reproductive travel, sometimes pejoratively referred to as “reproductive tourism,” in which commissioning or intended parents1 from a developed nation hire a surrogate from a developing nation to gestate a child.
*Co-Dean and Professor of Law at Rutgers Law School in Camden.