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Obergefell and the New Reproduction
Courtney Megan Cahill
Alternative reproduction has become the new frontier in
the continuing culture wars over the family. Commentators
with longstanding anxieties over non-traditional kinship have
turned their regulatory gaze to it, as have more progressive
scholars who support non-traditional family formation but nev-
ertheless favor proposals to regulate the new kinship and the
new reproduction.' Excavating Obergefell v. Hodges's2 less ob-
vious reproductive dimension, this Essay argues that the
Court's landmark marriage equality decision renders these
regulatory proposals of alternative procreation constitutionally
vulnerable. It further maintains that Obergefell could trans-
form even existing laws on procreation by eroding a distinction
on which so many of them rest: the distinction between sexual
and alternative life creation. Thus understood, Obergefell is a
case that unsettles not just the traditional underpinnings of
marriage, but also the very edifice supporting the legal regula-
tion of intimate and family life.
This Essay proceeds as follows: Part I sets forth commenta-
tors' proposed regulations of alternative reproduction and their
t Copyright © 2016 by Courtney Megan Cahill.
1. Naomi Cahn refers to the families created by alternative reproduction
as the new kinship. See Naomi Cahn, The New Kinship, 100 GEO. L.J. 367
(2012) [hereinafter The New Kinship]. Dorothy Roberts refers to some alterna-
tive reproductive methods as the new reproduction. Dorothy E. Roberts, Race
and the New Reproduction, 47 HASTINGS. L.J. 935 (1996). While some alterna-
tive reproductive technologies, such as in vitro fertilization, are relatively new,
others, such as surrogacy and alternative insemination, have a much longer
ancestry-one that in some cases extends back to biblical times. See generally
KARA W. SWANSON, BANKING ON THE BODY: THE MARKET IN BLOOD, MILK,
AND SPERM IN MODERN AMERICA 200-25 (2014) (providing a detailed history
of insemination with donor sperm in the 19th and early-to-mid 20th centu-
ries); Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close
Look at Artificial Insemination, 77 WASH. L. REV. 1035, 1107 (2002)
(Surrogacy by natural means ... was practiced since biblical times.). This
author places new in smart quotes in order to contest what is routinely as-
sumed, namely, the novelty of alternative reproduction and the kinship that it
helps to create.
2. 135 S. Ct. 2584 (2015).
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