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«NOS. 14-556, 14-562, 14-571, 14-574 IN THE Supreme Court of the United States JAMES OBERGEFELL, ET AL., Petitioners, v. RICHARD HODGES, DIRECTOR, ...»

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10, 2014) (“It’s shameful to say, but my father was paid roughly $75 to promise to have nothing to do with me”).26 As one study reports, “on average, young adults conceived through sperm donation are hurting more, are more confused, and feel more isolated from their families” than those raised in two-parent, biological families. Elizabeth Marguardt, et al., My Daddy’s Name is Donor at 5, Institute for American Values (2010).27 The problems inherent in surrogacy (as opposed to sperm donation) are even more pronounced. Surrogate mothers face serious physical risks, for example, such as “high risks of complication and multiple births” associated with in vitro fertilization. Catherine London, Advancing a Surrogate-Focused Model of Gestational Surrogacy Contracts, 18 CARDOZO J.L.

& GENDER 391, 420 (2012). They may also suffer psychological problems, such as emotional trauma from being denied the ability to emotionally bond with the baby they carried to term and delivered. Paula Amato, et al., Ethics Committee of the American Society for Reproductive Medicine, Consideration of the Gestational Carrier: a committee opinion, 99 FERTILITY AND STERILITY 1838, 1841 (June 2013).

The practice itself tends to exploit and harm women. See Williams, Women, supra, at 509-10 (“[T]ransactional procreation exploits, demeans, and Available at http://www.thepublicdiscourse.com/2014/11/ 13993/.

Available at http://americanvalues.org/catalog/pdfs/Donor_FINAL.pdf.

devalues women” (footnote omitted)). This exploitation will most widely occur among women in underprivileged communities because they are more likely to accept the harms of commercial surrogacy in order to provide for their daily needs. Indeed, as one scholar presciently noted two decades ago, “the expansion of the surrogacy industry threatens to ‘create a national traffic in women exploited for their reproductive faculties and functions … where women are procured as instruments in a system of breeding.” Mary Lyndon

Shanley, Surrogate Mothering and Women’s Freedom:

A Critique of Contracts for Human Reproduction, in


NEW REPRODUCTIVE TECHNOLOGIES 156 (1995). And increasingly, poor women in third-world countries are being exploited by a thriving transnational surrogacy tourism industry, their wombs hired out—often under compulsion—with little regard for their own health.

Erica Davis, The Rise of Gestational Surrogacy and the Pressing Need for International Regulation, 21 MINN. J. INT’L L. 120, 124 (2012); Hedva Eyal, Genewatch: Reproductive Trafficking, Council for Responsible Genetics.28 Same-sex couples are not the only ones availing themselves of such assisted reproductive technologies, of course, but because same-sex couples must necessarily involve someone outside the relationship, either directly or through the use of such technologies if they want children who are genetically connected to one of them, we are already seeing a “rising demand for surrogate mothers,” with all the attendant risks Available at http://www.councilforresponsiblegenetics.org/genewatch/ GeneWatchPage.aspx?pageId=313.

described above. Helen M. Alvaré, Same Sex Marriage and the “Reconceiving” of Children, 64 Case Western L. Rev. 829, 857 (2014). This truly is a brave new world that will be just one of the collateral consequences of the redefinition of marriage that this Court is being asked to impose on the country.


Redefining marriage as a constitutional mandate will force States to recognize a relatively small class of additional relationships as marriages. But in the process, it will likely harm countless women and children, particularly those in low-income communities.

The risks that attend this fundamental social change are thus great. Therefore, if that change is going to happen, if society is going to embark on a course that threatens so much harm to women and children in socioeconomically disadvantaged communities, it should be the result of the thorough debate and vetting that occurs through the democratic process. That way, should the harms that this brief anticipates occur, the States will have only themselves to blame, and they will have a means to take corrective action.

But if this Court constitutionally redefines marriage nationwide, and if the harms discussed herein come to pass, the States would be unable to protect women, their children, and the underprivileged by restoring the man-woman marriage institution. Amici thus urge this Court to keep this important issue where it belongs: in the hands of the States and their citizens.

–  –  –

Counsel for Amici Curiae Scholars of the Welfare of Women, Children, and Underprivileged Populations

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