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Surrogacy and The Law's 'New Normal'


StoryNBC's sitcom, The New Normal tells the story of a well-to-do gay couple that starts a family through a surrogate. The show wants to be sassy (it co-stars NeNe Leakes, an Atlanta 'Real Housewife'), heartwarming (co-stars Georgia King, the surrogate named Goldie, and her wise-beyond-her-years daughter, Bebe Wood, are nothing if not entirely adorable and the objects of our sympathy and affection), and reflective of our post-gay world (Justin Bartha and Andrew Rannells play partners David and Bryan who are in love and filled with pre-parental angst, just like every other couple expecting a child). It also shines a bright light onto a legal world where increasing importance is belied by byzantine complexity.

The law of surrogacy -- and, specifically, the law of gay surrogacy -- implicates family law, tax law, and constitutional law. And although these topics may not be at the forefront of the mind of creator Ryan Murphy, 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. 

The pilot starts that project, but it's anyone's guess whether The New Normal will deal with its legal issues (not to mention its social, economic, racial, generational, gender and other issues) with the seriousness they deserve. Still, the pilot raises questions that those of us interested in LGBT family law must explore. To do that, I reached out to my incomparably smart colleague, Richard Vaughn, founder of the International Fertility Law Group and one of the few lawyers in this country focusing on gay surrogacy issues. I recommend you read his blog on these issues, available here. He has lectured extensively (including in my classes) and he and his husband used a surrogate to start a family of their own. Therefore, he can speak to these issues from an intellectual and practical perspective. 

AFTER THE JUMP, I analyze The New Normal pilot from a legal perspective, highlight the legal questions it raises, and work with Mr. Vaughn to provide context, answers, and even more questions.


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Surrogacy Expert Weighs in on 'The New Normal'



John Weltman is the president and founder of Circle Surrogacy and an expert in assisted reproductive technology law. He and his husband are the fathers of two sons, 18 and 17, through surrogacy.  They were the first in America to have two children through surrogacy, one for each dad through the same surrogate mom. 

Television has come a long way in representing gay characters. In May, Joe Biden said, in discussing marriage equality, that “Will & Grace probably did more to educate the American public than almost anybody’s ever done so far.”

NBC’s The New Normal, which premiered last night, is the next chapter. The storyline focuses on gay characters becoming parents through surrogacy.

The subject is close to my heart. After seventeen years of helping parents have children through surrogacy, I can tell you that the show gets some things right. And it gets some things very wrong.

In the pilot, we meet David, a football-watching doctor, and Bryan, his fashion-obsessed partner, who want to have a baby. Let’s leave aside discussion of hackneyed gay stereotypes. More dangerously, Bryan’s fondness for nice things is likened to his desire to have a child. “Oh my God, that is the cutest thing I’ve ever seen,” he gasps at a baby at the mall. “I must have it.”

N_normalOkay, it’s a sitcom and Bryan has some of the funniest lines. But no couple, gay or straight, considers surrogacy because they want “to have baby clothes. And a baby to wear them.” Becoming parents is the biggest step a couple can take together. It requires thoughtful consideration and contemplation.  Anyone who told me they wanted to have a baby for their clothes would be shown the door!

Here’s where The New Normal gets things right: the episode opens on a misty-eyed Bryan speaking to his future child: “This video is to show you … how desperately you were wanted.”

Those who choose surrogacy do so because they want, more than anything, to have a child. Whether they are an infertile straight couple, or a gay couple who have gathered resources for years, there is no question that surrogacy is not something you take lightly. When contrasted with the way generations of parents in Goldie’s family have had children by accident, those who pursue surrogacy for the right reasons will make some of the best parents—in part because it requires such careful thought and planning. 

In the episode, we learn of a simple process of clicking though the “stunning models” in the “platinum” egg donor database and creating a perfect embryo to be implanted into a surrogate. Bryan wants to know if it’s extra for a “skinny blond child who doesn’t cry.”

Again, it’s a sitcom and it relies on tired humor. In doing so, however, it dehumanizes surrogacy and egg donation. Let’s set the record straight. The process by which surrogates, egg donors, and intended parents choose to work together occurs after meticulous consideration of a variety of factors.

Women apply to become surrogates by answering questions about their personal and medical history, what they are looking for in intended parents, what their views are on medical issues, and why they are considering surrogacy. They speak with social workers and partake in screenings. Legal experts weigh in. A match is ultimately a two-way street, with surrogates and egg donors, deciding with intended parents that they want to move forward.

Couples don’t choose egg donors exclusively because they are beautiful or blonde, but because they are healthy and happy and may be open to meeting the child someday. 

When the agency representative asks David and Bryan who is going to be the bio dad, both respond, “I am.” Advances in IVF technology allow us to divide eggs between two potential sperm providers and implant two embryos, one from each  gay dads, so that each man can become a biological father of half siblings at the same time.  Other times, gay couples have one child through surrogacy, and then have a second child through surrogacy using the other father’s sperm.

Whatever the outcome, gay couples who become parents through surrogacy are finding that Bryan’s epiphany rings true: not having a biological tie to a child doesn’t make you any less of a father.

The second episode airs tonight at 9:30 ET. Look forward to another post responding to surrogacy issues raised in future episodes.

Watch the First Full Episode of NBC's 'The New Normal': VIDEO


Watch the first episode of The New Normal, the new NBC Ryan Murphy comedy about two gay dads, their surrogate, and their kid which has been banned by Mormon-owned Salt Lake City affiliate KSL-TV, AFTER THE JUMP...

Said Jeff Simpson, CEO of KSL’s parent company, Bonneville International: "From time to time we may struggle with content that crosses the line in one area or another. The dialogue might be excessively rude and crude. The scenes may be too explicit or the characterizations might seem offensive ... For our brand, this program feels inappropriate on several dimensions, especially during family viewing time."

Watch the full pilot episode, AFTER THE JUMP...

Continue reading "Watch the First Full Episode of NBC's 'The New Normal': VIDEO" »

Andrew Rannells and Justin Bartha Pray for Baby, Nene Leakes and Ellen Barkin Throw Down in 'The New Normal': VIDEO


Yesterday, I previewed a clip from the upcoming Ryan Murphy NBC show The New Normal, starring Andrew Rannells and Justin Bartha, about a gay couple that forms a family through a surrogate mother.

Here's a longer preview which features more of the storyline and a throwdown between Nene Leakes and Ellen Barkin.

Check it out, AFTER THE JUMP...


Continue reading "Andrew Rannells and Justin Bartha Pray for Baby, Nene Leakes and Ellen Barkin Throw Down in 'The New Normal': VIDEO" »

'The New Normal' Gay Couple Andrew Rannells and Justin Bartha Interview a Surrogate: VIDEO


On Friday, I posted a promo photo from The New Normal, the upcoming Also just released is a clip from The New Normal starring Andrew Rannells and Justin Bartha, the new Ryan Murphy series about a gay couple who forms a family with a surrogate. The show also co-stars Ellen Barkin and Nene Leakes.

Here's a brand new clip in which Rannells and Bartha interview the potential surrogate, Goldie.

Check it out, AFTER THE JUMP...

Continue reading "'The New Normal' Gay Couple Andrew Rannells and Justin Bartha Interview a Surrogate: VIDEO" »

Filmmaker Hopes to Document Gay Couple's Surrogacy Journey: VIDEO


Here's a Kickstarter project that caught my attention. Filmmaker Edward Mcdonald is looking to finance a documentary about Troy and Ian, and their chosen surrogate, Ian's sister LeAndra.

Writes McDonald:

More Than a Village will take an eye-opening look at two men’s journey as they attempt to procreate in the 21st century. The couple has already been turned down by other surrogacy agencies because of their sexual orientation—but their determination is steadfast. I plan to document their unique process of procreation from start to finish, capturing the egg harvesting, in vitro fertilization, pregnancy, complications, birth of the children, and everything in between.

The film will also look closely at the surrogate’s life.

Have any of our readers had kids through surrogacy? If so, feel free to share.

Watch the Kickstarter trailer with the couple's story, AFTER THE JUMP...

Continue reading "Filmmaker Hopes to Document Gay Couple's Surrogacy Journey: VIDEO" »


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