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89 Wash. L. Rev. 1155 (2014)
Compensated Surrogacy

handle is hein.journals/washlr89 and id is 1185 raw text is: COMPENSATED SURROGACY Martha A. Field INTRODUCTION The question that was put to us is whether the widespread legalization of gay marriage, supported by the Supreme Court's decision in United States v. Windsor,' means that compensated surrogacy should be more broadly legalized. This essay takes the position that Windsor has little relevance to surrogacy, which will continue to be governed by state rather than federal law. States do, and will, follow a wide spectrum of policies on surrogacy, ranging from banning it and making it illegal to promoting it by enforcing surrogacy contracts as ordinary commercial transactions. The legalization of gay marriage need not affect states' surrogacy laws. It is easy to understand why gay couples want to be able to have genetically related babies; their reasons are the same as other couples', and the desire is widespread. Why would anyone want to interfere with a procedure that helps create loving and happy families and allows many men, single or married, to have a genetically related child? From that perspective, it seems cruel to deny this procedure to gay male couples, to couples in which the wife is infertile, or to single persons, for that matter.2 But surrogacy is not problem-free. It raises serious issues of commodification-of sex, of childbirth, of birthmothers, and of children-by allowing contracts, sales, and money to govern these once noncommercialized areas of life. Such commercialization of childbirth could profoundly affect the kind of society in which we live. Surrogacy also arguably exploits women instead of liberating them. Accordingly the calls to legalize surrogacy further are joined by calls to eliminate Langdell Professor of Law, Harvard University. I wish to thank Rachel Silverman Dolphin for excellent research assistance. 1. U.S. , 133 S. Ct. 2675 (2013). 2. Couples in which only the male is infertile and most lesbian couples will not require surrogacy; they will simply have to purchase sperm and undergo artificial insemination, an easier and less expensive procedure that raises fewer ethical concerns. 1155

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