Alternative Reproduction in the Age of Marriage Equality

Courtney Megan Cahill, The Oedipus Hex: Regulating Family After Marriage Equality, 49 U.C. Davis L. Rev. 183 (2015).

As marriage equality became a nationwide reality, those who opposed same-sex marriage increasingly turned their attention to issues of reproduction and parenting. In 2012, David Blankenhorn, a longtime opponent of same-sex marriage, famously announced his newfound support for marriage equality in the pages of the New York Times. Yet Blankenhorn continued to oppose important aspects of family formation by same-sex couples, arguing that “children born through artificial reproductive technology” should have “the right to know and be known by their biological parents.” Same-sex couples commonly raise children conceived with anonymous sperm or egg donors, and same-sex-couple-headed families are much more likely than their different-sex counterparts to include nonbiological parent-child relationships. As Blankenhorn’s views suggest, opposition to LGBT equality can seamlessly continue in new forms. Indeed, researchers at Blankenhorn’s Institute for American Values are urging “an active public debate over whether it is ethical for the state to support the deliberate conception of children who will never have the chance to be raised by their biological parents.” Elizabeth Marquardt, the director of the Institute’s Center for Marriage and Families, advocates a number of restrictions on family formation through assisted reproductive technologies (ART). Restrictions on the use of ART to form nonbiological parent-child relationships will have a distinct impact on reproduction and parenting by same-sex couples. In marriage equality’s wake, alternative reproduction has clearly emerged as an important new front in the culture wars.

In her engaging and insightful new article, The Oedipus Hex: Regulating Family After Marriage Equality, Courtney Cahill focuses on a specific argument put forward by those seeking to restrict alternative reproduction—what she terms the incest prevention justification. As Cahill explains, scholars and advocates argue for greater regulation of alternative reproduction to minimize the likelihood for accidental incest among donor-conceived children.

Of course, conservative opponents of alternative reproduction make a number of other arguments, many of which explicitly endorse gender-differentiated parental roles. For instance, Marquardt argues that alternative reproduction, to the extent it facilitates same-sex family formation and single parenting, regrettably produces “motherless” and “fatherless” families. A narrow band of the political spectrum now supports such arguments. But the incest prevention justification finds support across the ideological spectrum. Prominent family law scholar Naomi Cahn, for example, invokes the fear of accidental incest as a basis for supporting laws prohibiting donor anonymity or limiting the number of gamete donations from a single donor.1 Unlike Blankenhorn and Marquardt, Cahn supports LGBT equality and nontraditional families. The incest prevention justification, then, has the unique capacity to unite ideological opponents in matters over the family.

This feature of the argument from incest is precisely why Cahill’s analysis is so important. She uncovers how a seemingly non-ideological claim can conceal positions that threaten to undermine a diverse array of family forms. As Cahill explains, the justification’s “normative objective is largely unseen, appearing on its face to be a biologically-driven response . . . to the considerable expansion of alternative reproduction in the United States.” Through a wide-ranging and theoretically sophisticated analysis, Cahill then reveals the justification’s productive force. Like the incest taboo more generally, the incest prevention argument against ART can be used to “establish a normative conception of the family, one that necessarily includes two biological parents of different sexes and that is bound by ‘the genetic tie.’” In other words, the incest prevention justification can curtail efforts to depart from the biological, gender-differentiated, heterosexual family—while seemingly remaining silent about the very norms it enforces.

Ultimately, Cahill rejects the incent prevention justification on both normative and constitutional grounds. By “establish[ing] the traditional family—married parents and their biological children, sexually conceived—as the ideal family,” the justification marks as inferior—and suspect—family formation through alternative reproduction. Such family formation is vital to the reproductive projects of same-sex couples and single parents—not to mention a growing number of different-sex couples. Furthermore, by “establish[ing] the donor network as a family”—that is, by understanding donor-conceived children as existing in familial networks such that incest becomes a concern—the justification prioritizes biological and genetic connections over chosen families and social parenting. The drive toward the traditional family and the emphasis on biology together marginalize the reproductive and familial choices of same-sex couples and single parents and undermine social kinship.

Cahill bolsters her normative claim with a compelling constitutional argument, showing how the incest prevention justification runs against the reasoning that animates Obergefell v. Hodges, the Court’s recent marriage equality decision, and the long line of constitutional family-related cases that preceded it. While she extracts principles of “familial autonomy and familial self-determinism” from Supreme Court cases in the second half of the twentieth century, Cahill nonetheless recognizes their limitations; even when they departed from the traditional family, those cases tended to protect biological relationships. Against this backdrop, Obergefell and other marriage equality decisions intervened. As Cahill shows, marriage equality jurisprudence does not merely further the familial autonomy precedents; rather, it expands their reasoning to reach relationships that depart from the heterosexual, gender-differentiated adult couple and the presumption that they are the joint biological parents of the children they are raising. In other words, marriage equality resists the very model of family embedded in the incest prevention justification.

The Oedipus Hex marks an important contribution to an ongoing debate over legal regulation of alternative reproduction. More broadly, though, Cahill’s article intervenes in a vital post-marriage equality debate just beginning to take shape. For many years, conflict over same-sex marriage centered around two primary questions. In the broader public debate, supporters and opponents disputed whether same-sex couples should have access to marriage. Within LGBT circles, scholars and activists considered whether marriage should be an LGBT priority. But now that marriage equality is a nationwide reality, a new set of difficult questions is emerging: How does marriage equality affect the broader family law regime? How does the reasoning on which marriage equality is premised influence constitutional rights in the family? How, if at all, does marriage equality support transformations in the regulation of reproduction and the family? As Cahill carefully probes the relationship between marriage equality—as a conceptual and constitutional matter—and alternative reproduction, she suggests just how much is at stake. The meaning of marriage equality is neither clear nor settled; scholars, advocates, and lawmakers will debate its significance for many years to come. And Cahill’s voice is critical to that debate.

 



  1. See Naomi Cahn, The New Kinship: Constructing Donor-Conceived Families 117, 129, 155 (2013). []
Cite as: Douglas NeJaime, Alternative Reproduction in the Age of Marriage Equality, JOTWELL (March 9, 2016) (reviewing Courtney Megan Cahill, The Oedipus Hex: Regulating Family After Marriage Equality, 49 U.C. Davis L. Rev. 183 (2015)), http://family.jotwell.com/alternative-reproduction-in-the-age-of-marriage-equality/.