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A gay couple apparently hasn’t accepted the established fact that men can’t get pregnant, so they have decided to sue New York City to force it to pay for the services of a surrogate parent.

I am not kidding. A gay couple is suing the city to ensure their right to have children. That includes paying for IVF and all the services of a surrogate to carry the baby. Rent a womb, in a sense.

Corey Briskin and Nicholas Maggipinto met in law school in 2011, were engaged by 2014, and had their 2016 wedding announced in the New York Times. They moved to a waterfront apartment block in Williamsburg, Brooklyn, with a bright playroom for families on the ground floor.
“We got married and then we wanted all the trappings: house, children, 401K [retirement saving plan], etc,” Maggipinto, 37, tells me in their building’s shared meeting room, tapping the table in sequence with the progression of each idea.

Briskin, 30, grew up assuming he’d have children. He came out in college. “Once I had come out to myself and others, I don’t think my expectation of what my life would look like changed all that much.” With marriage equality won years ago, they expected to be able to have a conventional married life.

Not to put too fine a point on it, but one of the consequences of being gay is that reproduction with your partner is not in the cards. It may not be “fair,” but it is biology. There are trade offs in life, not clear paths to have everything you could possibly want. And there are limits to what exactly you can expect others to pay for. Their inability to reproduce without extraordinary intervention–including massive costs involved in renting somebody else’s body for nearly a year–is clearly not society’s to bear.

Six months before their wedding, a targeted ad from an organisation called Gay Parents to Be landed in Maggipinto’s Instagram feed, offering free consultations with a fertility doctor who’d give them “the whole rundown” on how they could start a family. “We had the appointment and we were 100% on the same page – let’s move forward with this,”says Maggipinto.

That’s when they first became aware of the eye-watering cost of biological parenthood for gay men. Maggipinto reels off the price list in a way that only someone who has pored over every item could. There’s compensation for the egg donor: no less than $8,000 (£6,600). The egg-donor agency fee: $8,000-10,000. The fertility clinic’s bill (including genetic testing, blood tests, STD screening and a psychiatric evaluation for all parties, sperm testing, egg extraction, insemination, the growing, selecting, freezing and implantation of the resulting embryos): up to $70,000. And that’s if it all goes well: if no embryos are created during a cycle, or if the embryos that are don’t lead to a successful pregnancy, they would have to start again.

Then there’s the cost of a surrogate (called a “gestational carrier” when they carry embryos created from another woman’s eggs). Maggipinto and Briskin were told agency fees alone could stretch to $25,000, and the surrogates themselves should be paid a minimum of $60,000 (it is illegal for surrogates to be paid in the UK, but their expenses are covered by the intended parents). “That payment doesn’t include reimbursement for things like maternity clothing; lost wages if she misses work for doctors’ appointments or is put on bed rest; transportation; childcare for her own children; [or] lodging.”

It turns out that trying to get around the limitations of biology is extraordinarily expensive. It really is difficult to see exactly how it is the City of New York’s responsibility to pick up the tab. However, their claim is based upon the fact that one of the potential fathers used to work for the city:

Briskin used to work for the City of New York as an assistant district attorney, earning about $60,000 a year. His employment benefits had included generous health insurance. But when they read the policy, they discovered they were the only class of people to be excluded from IVF coverage. Infertility was defined as an inability to have a child through heterosexual sex or intrauterine insemination. That meant straight people and lesbians working for the City of New York would have the costs of IVF covered, but gay male couples could never be eligible.

Legally their claim is not absurd on its face. The city’s benefits package is clearly extraordinarily good (better than anybody I know of) because they work for the city. However it still seems to me that their beef is really with God, as it was ultimately He who determined that human beings reproduce sexually, requiring a male and a female to complete the task. In every other case the ability to reproduce is baked into the cake, so to speak.

Perhaps they should include Planned Parenthood in the suit. After all the organization claims to have found a way for men to get pregnant, and that would certainly cover their needs with much less trouble and expense.

To be clear, claiming the right to a surrogate runs afoul of the pro-choice movement’s characterization of pregnancy as dangerous forced labor. A payment of $60,000 for the service seems meager, considering how potentially risky this is. This has not escaped notice by ethicists and people exercising common sense:

Surrogacy always comes with serious legal and ethical challenges, whether it is traditional (using the surrogate’s eggs) or gestational; altruistic or commercial; gay or straight. Surrogates have been asked to abort babies against their will when intended parents split up, when too many embryos implant successfully, or when the baby they are carrying is found to have birth defects.

Commercial surrogacy is banned in almost all of Europe, leading some to seek it abroad. After India and Thailand closed their doors to fertility tourists in 2015, Ukraine became the go-to destination; when war broke out in February, thousands of women pregnant with other people’s children were in turmoil while the panicked intended parents tried to work out how to get them and their precious cargo out of the country.

In 2020, hundreds of surrogate babies were left stranded in Kyiv because of Covid travel restrictions. Surrogacy is legal to some degree in almost every US state. American women have died in recent years during surrogate pregnancies and deliveries, while egg donors have been left infertile and seriously ill after their eggs were harvested.

Personally I don’t quite know what to think about surrogacy. On the one hand I am reluctant to use the power of the state to prevent people from making contracts with each other if everybody goes in with their eyes open. On the other, the practice itself is creepy and is based upon the commodification of human life. My moral instinct says that the practice should be banned, especially the practice of forced abortions if the “parents” choose not to continue the pregnancy. That is disgusting on its face.

So why not adopt?

Briskin and Maggipinto pause before answering this. “I have never been opposed to adopting, [or] even to having a foster child to see where that leads,” Maggipinto says, eventually. “But as a couple we’ve come to a decision that having a child that’s biologically connected to us is important.”

“I’m not wringing my hands here,” Briskin says. “It really feels like such an affront to be asked this question. I find it deeply offensive. Nobody asks the person who’s having children naturally why they did it instead of adopting. I help others in other ways – but that’s just not how I’d choose to do it.”

You are gay men. Men do not get pregnant. There is no medical disorder involved here. I am sorry that your biology gets in the way of your desires, but that is true for each and every human being on the planet.

“I am pro-autonomy,” Briskin says. “I believe that people should be able to make decisions about their lives, their bodies. This is so relevant now, with the decision from the supreme court [overturning Roe v Wade]. For me, it goes into the same category as sex work: there’s this puritanical belief that sex workers are being forced to sell themselves. There are many, many sex workers who do not view their line of work that way.”

Again, making human beings commodities is morally offensive, which is why we ban sex work. It is not just protecting people being forced to participate through human trafficking. It is the commodification of bodies itself that morally offends.

At the bottom, this dispute is a perfect example of one of the key problems modern technology and modernist ideology present to us. So much of human progress has been driven by the desire to overcome the limitations nature has imposed on us. So much good has come from that, including modern medicine and all its benefits.

But a lot of questionable things have arisen as well, including the attempt to deny nature by creating new things like transgender ideology. By overcoming nature we have also unmoored ourselves from the guidance of natural law. Nature tells us truths because we are limited and embodied. We are created as a person, not just a soul without form. How limited should we be by the inborn limitations?

I am not certain myself, but I know that by ignoring the question and tossing out Natural Law, we are in new and disturbing territory.

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