Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, August 2, 2012

SSM and artificial reproductive technologies

Alana Newman, the daughter of a sperm donor, explains her opposition to SSM through the lens of her concerns about the corresponding increase in the use of artificial reproductive technologies (ART):

Most people approve of gay couples adopting. I am one of these people. Adoption exists as an institution because of human frailty; sometimes people are unable to raise their biological children, but those children still need loving homes. Adoption is not a market that provides children to the adults that desire them. It is for parents to find children who—tragically—cannot be raised by their biological parents. . . . But there’s a big difference between ART and regular adoption. Donor-conception, unlike adoption, is a market where new humans are created to fulfill the demands of the adults that want them. “Commercially conceived” persons are deliberately denied a relationship with one or both of our biological parents. The tragic, primal wound ubiquitous in adoption literature is woven into every commercially conceived person’s life story.

The comment thread raises some interesting questions, including this: if ART is the problem, isn't opposition to SSM a wildly over- and under-inclusive proxy for addressing it?


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"...if ART is the problem, isn't opposition to SSM a wildly over- and under-inclusive proxy for addressing it?"


Posted by: Kostya | Aug 2, 2012 7:02:07 PM

". . . if ART is the problem, isn't opposition to SSM a wildly over- and under-inclusive proxy for addressing it?"

What an incredibly succinct way to put it. I happen to know there is a very long-winded commenter over of First Things who wishes he could write like that.

Posted by: David Nickol | Aug 2, 2012 7:16:05 PM

I'm not quite sure how something can be both over-inclusive and under-inclusive at the same time. Yet, since marriage, even SSM, is about 'family', objection to ART seems like it should necessarily include objection to SSM.

Posted by: Bruce | Aug 3, 2012 10:27:55 AM


Single women can use ART. Married women (and their husbands) can use ART. An unmarried woman and her boyfriend can use ART. Two unmarried lesbian partners can use ART. How, then, can you justify opposition to SSM on the grounds that *some* same-sex married couples will probably use ART?

Objecting to SSM because of possible use of ART is over-inclusive because it would prevent same-sex couples from getting married who had no intention of using ART. It is under-inclusive because of what I pointed out in my first paragraph.

If you oppose ART, then try to do something to stop *all* of the people who use ART from using it. Don't try to justify opposing SSM because some same-sex couples *might* use it.

Posted by: David Nickol | Aug 3, 2012 11:17:05 AM

I agree with the need to limit ART across the board, but same-sex marriage will only make it more difficult to implement such limitations. Why? Because ART is the *only* way for a same-sex couple to have biological children. Any limitation on ART will be cast as discriminatory against same-sex couples. If homosexual couples must be treated "equally" as heterosexual couples, the "equality" will involve allowing same-sex couples (and therefore all couples) access to ART.

Posted by: Alexander | Aug 3, 2012 6:14:20 PM


You say: Because ART is the *only* way for a same-sex couple to have biological children.

This is factually incorrect. The CDC defines ART as "all fertility treatments in which both eggs and sperm are handled." Consequently, artificial insemination is not ART. And how would you restrict it, anyway? It can be done at home with no doctor and no special equipment. Also, many gay men and lesbians are married with children before they realize they are gay. After the divorce, the gay parent may get custody of the children and form a gay partnership. Also, being gay and/or lesbian does not generally mean a person is incapable of having intercourse with a member of the opposite sex.

You say: "I agree with the need to limit ART across the board . . . "

Give me your proposals for limiting ART. Give me a restriction you would place on ART that has a chance of being enacted into law.

Posted by: David Nickol | Aug 3, 2012 10:43:53 PM

Mr Nickol,

Your post continues to prove the point I made at First Things about your commenting. You asked why same sex marriage should affect the debate over ART. I explained the connection, but you don't really confront the brunt of my argument. All you come back with is a quibble about the definition of ART and my use of the word "only." And then you totally shift the debate by arguing that no limitations on ART are politically practicable. You're smarter than your debating and sophistic arguments reveal. You should show it more often with a more openminded pursuit of he truth rather than just combox battling to preserve your existing positions.

Posted by: Alexander | Aug 4, 2012 10:40:55 PM

Alexander: I don't follow your argument. If a person thinks same-sex couples must be treated equally to different-sex couples in all respects, and also thinks that banning donor insemination and surrogacy constitute unequal treatment of same-sex couples, I suppose it's true that such a person would likely oppose banning donor conception. But same-sex marriage establishes equality between same-sex couples and different-sex couples in marriage, not in all respects. Further, and more importantly, banning certain reproductive procedures, for everyone, would not be unequal treatment of same-sex couples simply because it happened to be especially inconvenient for them. You could have a legal scheme that does not distinguish at all between same-sex and different-sex couples and still ban donor conception.

For the argument in the First Things article to be compelling, there would have to be a clear explanation of the connection between the legality and cultural legitimacy of donor conception, and the legalization of same-sex marriage specifically (rather than a generalized commitment to give same-sex couples whatever some of them may want.) It is exceedingly difficult to see that connection. And if marriage does in fact somehow carry with it in law or culture a right to the most convenient method of becoming parents available to the couple, different-sex married couples with fertility problems, who probably far outnumber same-sex couples, will pose the warned-of problem quite irrespective of the legality of same-sex marriage.

Posted by: JHW | Aug 5, 2012 2:55:06 AM