Hobby Lobby is not the beginning—nor the end—of laws controlling the reproductive choices of oppressed groups and privileging the reproductive choices of a select few. Our legal system has a long and continuing history of restricting the reproductive choices of women, especially American Indian women, other women of color, low-income women, and people with disabilities.
These restrictions have not been limited to access to birth control or forced sterilization. They have also targeted who can be recognized as legal parents with the right to care for and support their children. Despite the fact that it is estimated that over a million people in the U.S. were conceived using donor eggs or sperm most states do not have comprehensive laws addressing the use of assisted reproductive technologies. Instead, many states protect only married couples using assisted reproduction, only married different-sex couples using their own gametes, or have no protections at all.
This has created a serious legal quagmire for lesbian and bisexual couples. Many couples conceive children via sperm donation using at-home insemination, and then discover that their sperm donor is actually recognized as the legal father of their child under their state’s law. This can happen even if they had a written agreement terminating the donor’s rights because many states only protect parents using sperm donors if a doctor or sperm bank is involved in the insemination, regardless of the terms of any agreement.
When a sperm donor is recognized as a legal father, the donor could get custody or visitation with the child and be required to pay child support. And the non-biological mother could lose all contact with her child and not be recognized as a legal parent.
Laws that limit protections to parents using medical assistance to conceive via sperm donation disproportionately harm low-income families. Using a doctor or sperm bank is considerably more expensive than at-home insemination, and a successful pregnancy can be more likely through at home insemination with a known donor in some circumstances. For this and other reasons, many parents choose to inseminate without medical involvement.
This lack of protection is further compounded for very low-income families because of other laws. Federal Medicaid and welfare policy requires low-income mothers seeking Medicaid or other benefits to disclose the intimate details of their sex lives to government workers so that the state can go after the father for child support to pay for the cost of the benefits given to the child. These intrusive requirements are used against lesbian and bisexual mothers who have conceived using a known sperm donor who need to seek Medicaid coverage or other benefits for their children, forcing them to identify their sperm donors so that the state can inappropriately institute paternity actions against the donors to reimburse the state for the cost of the benefits.
There has been some recent movement in some states to address these limitations. For example, Delaware and Nevada recently enacted surrogacy laws that apply to unmarried parents, single parents, and same-sex parents. Moreover, the most recent Uniform Parentage Act, which is designed as a model for states to use to create their own parentage laws, has now eliminated the requirement that parents using sperm donors are protected only if they use a doctor to conceive. However, most states have woefully inadequate protections, leaving many parents at risk of losing their children simply because of how they were conceived.
These laws fail to recognize the reality of how most families look. Only about half of the children in the U.S. are being raised by married, biological parents, but many state laws privilege and protect the children in these families over others, sometimes providing absolutely no protections for many other children. This presents a particular problem for lesbian, gay, bisexual, and transgender parents who—regardless of how they have conceived—are often not biologically related to their children. Many states will not recognize non-biological parents unless they have formally adopted their own children, even if they are married to the child’s biological mother. These families will need more than marriage equality to be fully protected.
Reproductive justice means that all people have the meaningful right and ability to make choices about all aspects of reproduction, including the choice to have or not have children and to be recognized as parents their children, regardless of biological ties. This can only happen when all families enjoy full protection of the law.