Surrogacy and The Law’s ‘New Normal’

There is fodder for lots of commentary about The New Normal.

NeneMr. Rannells's character, Bryan, is a professional, impeccably dressed, and a bit of a white, gay, urban male stereotype. Mr. Bartha's character, David, is his love and his foil: he's introduced as a beer-drinking sports fan who's not just a doctor, but an OB/GYN! David is serious — he wants a child that will be smart, capable of "cognitive thought;" Bryan is almost frivolous — he wants "a skinny, blond child who doesn't cry." They rush to the phone when they see an egg donor candidate on video who says her friends say she looks like Gwyneth Paltrow (played by Ms. Paltrow, of course). Whether you enjoy this emerging trope for gay men on television or consider it a neatly packaged stereotype is worth a conversation for another day, and perhaps with a cinematic historian. Today, I would like to discuss the legal thicket into which these men so quickly jump.

The pilot portrays the guys' decision to have a baby as deeply emotional, yet spur of the moment. It wasn't just a cultural allusion to an impulse buy; Bryan decided he wanted a baby while shopping at Barney's! Though I am troubled by the manner of the decision, I am more concerned by the speed with which they go from idea to discussion to decision to interviews to their adorably blond surrogate of choice. That is not how the process usually works.

Having a child is no whimsical decision, but family lawyers know that finding an egg donor and interviewing a surrogate and waiting for implantation and waiting for a health birth can extend the process long after The New Normal might be off the air. Egg donor selection raises a litany of ethical questions about how willing we are to tailor our babies to particular specifications: height, weight, mathematical ability, imagination, skin color, eye color, etc. Choosing a surrogate is even more complex. The surrogate will be a fixture in the parents' lives for at least the next 9 months and most likely much longer, assuming implantation does not happen on the first try. Even then, many surrogates retain some connection to the family after delivery, at the encouragement of the parents. And, then, of course, there are those surrogates that change their minds, return the money, and sue to keep their child and break the surrogacy contract.

In some states, surrogacy contracts are black-letter-law illegal; in many others, courts declare them void as against public policy when there are no statutes directly on point. The choice of the surrogate — and, as a corollary, the state of gestation and birth — becomes more than a gut decision. It's a legal one.

The couple's surrogacy agent asks, "Who's gonna be the bio dad?" Later in the show, the couple cuddles in bed and Bryan remarks that he wants "Daddy David" to be the biological father. The discussion is an expression of love. Bryan feels that is more important for David, an only child, to "create something biologically [he] can recognize." He selflessly gives up biological fatherhood because, in the end, "not being the baby's bio dad doesn't make [him] less of a dad." Although he is right in theory and in many states, the patchwork of often antigay family laws throughout the country poses problems for the same-sex partners of biological parents.

Mr. Vaughn told me about one of his clients who lives in California who was recently matched with a surrogate in Colorado. But, Colorado, like several other states, including Oklahoma, Utah, and Florida, will only list the bio dad on the birth certificate. Birth certificates can sometimes be changed, but not in states that refuse to recognize gay relationships or same-sex second parent adoption. Without his name on the birth certificate, the no-bio dad has to sue for adoption if he lives in a state that allows second-parent adoption. Few do. If he is not listed, then he subjects his family to dissolution if something bad happens to the bio dad or if the couple divorces. Couples that decide to have children don't often think of these terrible eventualities when they're so much in love, but lawyers are trained to think of all possible problems and guard against them. 

NnormalThe pilot leaves audience with the wonderful impression that David and Bryan are going to have a wonderful relationship with Goldie. They will even help pay for her dream of going to law school and offer to give her their guest house rent-free. The couple's agent emphasizes the ease and simplicity of choosing an egg donor and surrogate by saying, "She's just like an E-Z Bake Oven with no legal rights to the cupcake." But, as Mr. Vaughn noted, the question of surrogate rights is not so simple.

Surrogacy lawyers often recommend civil, if arm's length relationships between parents and surrogates. Very close relationships can turn sour and, in many states, biology trumps eveything and the biological mother will often get parental rights especially if she has had a relationship with the child at the encouragement of the parents. There are several cases from New York to California where otherwise friendly relationships with surrogates conclude with splitting families apart.

Despite these questions, Mr. Murphy and his writing team know what they're doing with The New Normal, summed up beautifully by Ms. King, when she opines that "family is family, and love is love." This project is a television show, not a documentary, but the licenses it takes with reality never diminish the great power of the show's message. It could go as far as highlight the difficult and discriminatory legal regime potential gay parents face. More likely, The New Normal will be about the basic similarities between us all. We may dress differently, talk differently, and care about different things, but we all love and want to be loved. We all have dreams and all have obstacles to overcome. Our sexual orientation is who we are, but it changes nothing about our basic humanity. The more people learn that the better. 


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.


  1. Rick says

    “his show has the chance to go beyond the admittedly essential task of normalizing gay characters in our public culture. It could show viewers the horrors of everyday discrimination, the ways anti-gay laws stand in the way of love and family, and the irrationality of second-class citizenship.”

    Yes, it could have done that, but because Murphy chose to portray gay men as flighty, prissy, effeminate queens, the only people who will watch it will be flighty, prissy, effeminate queens and their fag-hags. Straight men will have nothing to do with it, gay men with any sense of self-respect will have nothing to do with it, and Middle America will reject it, not only because of the effeminacy of the two main characters, but because of the ridiculous caricatured portrayal of “Nana”–which not even the most bigoted of right-wingers behaves like.

    The show belongs in the toilet and I am confident that that is where it will end up in very short order. One only hopes that that fate will teach its creators a lesson.

  2. Kevin says

    thanks Ari – I appreciate the analysis. I think you should different between traditional and gestational surrogates. The sentence “biology trumps everything and the biological mother will often get parental rights” does not apply in the show since Goldie is a gestational surrogate. Anyway, I have high hopes for the show as a Dad of 3 via surrogate. I think the second episode was better than the first – but really, will most people get the grey gardens reference ?

  3. Liz says

    I am happy to see a mainstream network carry a show that addresses surrogacy and highlights some of its issues. I am currently a surrogate for a gay couple and this has helped friends and family open up with questions and view surrogacy as “normal” – both for mixed or same gendered couples. However, I agree with Rick’s comment on the stereotyped gay characters and wish Ryan Murphy would think it was normal (and still have a successful comedy) to present gay men how many of them are – regular guys.

  4. LLM says

    I really have enjoyed the show and don’t expect it to be an educational authority on anything any more than I expect sitcoms or soap operas to accurately reflect relationships, procedures, or technology in detail. Fantasy, of which television–especially sitcoms and soaps, which Ryan Murphy has blended here–is a big part of, allows for the adaptation of situations to meet the story telling or concept requirements. It also is practically required for the heightened stakes, risks, emotional investment, and drama required by entertainment. I feel like so many people, while grateful to see the matter addressed at all, are (at least on Towleroad) taking this all way too seriously. At best, a show like this might get one to investigate the reality of the possiblity–it’s not designed to educate them. No one expects regular high schools to have GLEE’s seemingly endless costume and sets budget (and labor to do the work), or their plastic surgeon to act like those on Nip/TUCK. We don’t want our doctors to have the incestuous personal drama of GREY’S ANATOMY, nor do we believe if we get a waitress roommate we can live in a near-million dollar apartment in Manhattan like the FRIENDS do. IT’s important to keep things in perspective.

  5. jamesintoronto says

    @Rick. I know I’m not supposed to feed the troll but did you even watch the show? One half of the gay couple is a sports-loving guy who has no idea who N’Sync is. I thought for sure you would appreciate the inclusion of what you term “a masculine gay male”. And I am not from the U.S. but I have travelled enough in your country and have seen enough examples of right wing nuts that make Ellen Barkin’s character seem tame. Now back under the bridge Rick.

  6. Michael Bedwell says

    The show is a bloody miscarriage likely to prevent gestation of any future serious treatment of gay surrogate parenting, and proving that Mr. Murphy shouldn’t be in television, he should be in therapy. And I weep in anticipation of the abortion he’s likely to make of the film adaptation of Larry Kramer’s “The Normal Heart.”

  7. Oz in OK says

    Personally I think it’s great for a show to show the serious, complicated state of things for Gay and Lesbian couples in America. For too long shows have focused on the ‘fabulous’ lifestyle without tackling the serious legal issues we face. I’m still shocked at the number of straight friends I have who had no idea how far-ranging DOMA’s (as an example) effects are until I sat them down and explained it. TV shows that include LGBT couples *should* tackle these issues. There are too many otherwise supportive Americans who just don’t know what’s going on.

  8. says

    The show is fine and it will do well. My husband and I are just ‘regular guys’ and, if anything, I’m the more stereotypical gay between us. I grew up gay in a household of major testosterone (five brothers, lesbian sister – come on). If you met my husband outside our marriage you’d have no clue he was gay. Reverse that and most women know right off the bat that I’m gay. I’m the impeccable well-coordinated and understated one.

    When my husband and I walk into a restaurant the majority of men are looking at me while the women are smiling at my husband. I’m the better looking, a former male model many would and continue to recognize. Men look because they perceive me as the competition while the women look at my husband as the all-man kind of guy they wish their own male partners could be. Greg oozes masculinity.

    Yet of the two I am the more maternal, the one who takes the majority of time to raise our son while Greg is far more paternal. I’m “Daddy” who packs his lunch, drowns him with kisses, attends to his boo-boos, while Greg is “Dad” and the one who teaches him how to hold a glove, takes him sailing, doesn’t miss the chance to instill the value of being good and caring for others and who doesn’t tear up when he drops him off at school. When I pick him up after class and he runs into my arms it takes all I have to not to tear up (his first few days I sat out front of the pre-school waiting for him to get out because I couldn’t bear to be without him).

    We didn’t decide what our son would call us, he did that on his own from what he perceived our roles to be. When he wakes at midnight with a fever he calls for Daddy. Not Dad but Daddy. If Greg goes in to comfort him he will undoubtedly come back to me to say “I think he’s sick, he feels warm, I told him I would get you…” Greg does that because that’s how he was raised and when stressed, Greg asked for the comfort of his mother. Yet, as a gay couple, Greg harbors no hard feelings. He just wants his son to be comforted and if that means sending in Daddy he will do just that.

  9. Jere says

    Part of the issue here, something that the show wasn’t terribly clear on, is the whole telescoping of the process from the idea to have a baby right through to meeting up with Goldie and her family. I just automatically made the assumption that there were large breaks in time from one scene to the next and the audience was only being presented with the equivalent of a highlights reel. Murphy needed to set up the situation and get as quickly as possible to the actual story he wants to tell, that of a makeshift family that forms spontaneously when the perspective dads form a close bond with their surrogate and her daughter. Murphy could just as easily have spent the entire (first?) season of this show taking this couple through the nitty gritty of the surrogacy process and the news of the pregnancy could have been the season finale setting up Season 2. But that’s not the story Murphy wanted to tell and there is no guarantee that there would have been that second season anyway.

  10. Lee Clark says

    We gay men are not all femmes and act like silly young girls and most important…….WE ALL DO NOT WANT TO HAVE CHILDREN. Every gay couple on television seems to want to have a child to fulfill their life. NOT TRUE. I like children and know that I could raise it better than most “straights” I know…..but no thank you, I don’t want one. And of course it usually results in a female child because….omg, Average America, we may just touch a male child inappropriately. So our interests are reduced to worrying about clothing this child with little dresses and frilly shoes.

    BUT YES, I did find the show entertaining and comical and “right-on” in some aspects of gays….so thank you. “We’ve come a long way, babe. We do have the greatest sense of humor and style and entertainment of any people on this planet….because we can laugh at ourselves, since we’ve HAD to do that being gay…..but we’re not always clowns and were outlandish clothes. thanks for listening.

  11. Luke says

    Wow, there is a lot of effeminophobia in this comment thread. I get that gay men wanted to be treated with respect comparable to how society treats straight men, but do we really need to disparage our gender non-conforming brothers?

  12. says

    @James – I agree – it is funny and the Bryan character is hot. I KNOW guys like him. And I assumed there were breaks in time because deciding to have a kid is not something a couple of gay guys can take lightly. The show is being repeated tonight and I’ll watch it again because it is funny and I want to enjoy the gayness of it all again. I really like the show.

  13. chuck says

    Typical new show…you either love it or hate it. A lot of shows became a hit after a lengthy time while potential fans slowly came to enjoy the characters. Many writers slowly accommodate the personalities of the actors.
    Will & Grace’s Jack was almost universally panned originally, by the final episodes many critics loved his outrageousness.

  14. Bob says

    @Rick and Lee Clark
    YOU ARE NOT THE INTENDED AUDIENCE- the show is not about you. The idea is to make straight people more comfortable with the entire Gay situation. To do that, Murphy must use characters that ANYONE would understand to be Gay, not folks like me.

  15. douglas says

    This is showbusiness; a half hour comedy production on NBC, not a study of gay adoption on PBS. And from Ryan Murphy, why would gay folk think it would go somewhere lofty. This is great entertainment, with a loconic script and a delicious cast. I have seen the 1st show 3 times and the 2nd bit only once. A+ *****, what else ya want from this Oklahoman. Great start Ryan, keep up the excellent work and keep that talented eye of yours on the prize. xxx

  16. says

    Great article Ari!! I am currently a surrogate for a gay couple and it’s not easy to open the eyes of those around you when it comes to viewpoints of surrogacy. This is great starting point to break the ice and help others understand from a “general” viewpoint in a lighthearted way. While the show wasn’t intended to create an educational backdrop, the topic at hand should be addressed as surrogacyis a reality for many childless couples– I look forward to reading more of your work.

    –Megan Goode

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