Legislative Oppression: Restricting Gestational Surrogacy to Married Couples Is an Attempt to Legislate Morality

Since the days of Baby M, surrogacy arrangements have become a well-accepted form of assisted reproduction. As one of the first alternatives available to those who could not create families naturally, surrogacy arrangements have been scrutinized and discussed from a variety of angles. Today, state laws determine whether surrogacy is allowed, establish the standards for the agreements and qualifications of those who use this form of family creation, and set limits on payments involved in such arrangements. Many states that regulate surrogacy through legislation have restricted the availability of surrogacy arrangements to married couples, thereby eliminating any non-traditional heterosexual couples, single individuals, and in most states, all same-sex couples. At first glance, this distinction does not seem to violate constitutional principles because it does not single out a suspect class, nor does it appear to treat similarly situated people differently. However, by reviewing a statutory scheme in Florida, where married couples have two statutory options for surrogacy arrangements and anyone else is limited to only one more burdensome option, it becomes clear that the only possible reason for the different treatment is the marital status of the intended parent or parents. This article suggests that the distinction is based on an effort to legislate a particular moral stance about marriage and families, explores whether legislation based on morality alone is appropriate, and concludes that, when morality is the only reason for a distinction, such legislation is not appropriate. Consequently, the requirement that intended parents be married in order to avail themselves of the benefits of gestational surrogacy arrangements is an inappropriate attempt to legislate morality, and the requirement should be eliminated