By overturning Roe v. Wade last June, the Supreme Court returned the question of abortion to the states. Pro-life advocates and opponents alike turned to state legislatures and constitutional amendments to either secure or destroy laws protecting unborn babies.
“Fetal personhood laws,” which legally protect human life at conception, obviously bear on abortion. But they also touch the future legality of assisted reproductive technology. The biggest examples include in vitro fertilization (IVF), surrogacy, embryo freezing and destruction. Those in the fertility market recognized that if an embryo that is either created in a lab or implanted in a woman’s uterine wall (i.e. a viable pregnancy) is a legal person, this could radically change not just state abortion laws, but fertility laws, too.
In response to this concern, lawmakers and advocates have pushed to make surrogacy, or similar reproductive options, an absolute right under state constitutions, federal law, and from insurance providers. (RELATED: COHEN: SCOTUS Left A Bitter Pill To Swallow In One Of Its Key Rulings. Here’s Why)
Michigan’s “Right to Reproductive Freedom” constitutional amendment is a prime example. Dubbed Proposition 3, this amendment is scheduled for vote via ballot measure on Nov. 8, 2022. If passed, it would ensure that “every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to … infertility care.”
Proposition 3’s does not just expand abortion on-demand for all nine months of pregnancy. It also obliterates age requirements and parental rights. Paired with its support for cross-sex hormones and sterilization surgeries, it could also turn surrogacy into an absolute right.
Proposition 3 amendment would secure for any “individual” (male, female, adult or minor) a right to “reproductive freedom” including “infertility care.” This suggests that a single man or a male same-sex couple has the right a woman’s body. Why? Because without a woman, no single man or male couple can naturally create, carry, or birth a child.
If passed, Proposition 3 would preempt the nearly 70 state laws that address abortion, contraception, sterilization surgeries, cross-sex hormones, and commercial surrogacy (surrogacy for money). Right now, such surrogacy is illegal in Michigan. The Michigan Surrogate Parenting Act §722.851-863 deems all surrogacy contracts, agreements, or arrangements as “void and unenforceable.”
Moreover, surrogacy contracts for compensation are subject to criminal penalties. Michigan law only allows altruistic, or compassionate, surrogacy.
But, if Proposition 3 is passed, it would likely preempt state laws restricting commercial surrogacy. That would open the door for legislators and activists to legalize commercial surrogacy in Michigan.
This is the ultimate dilemma of the ill-defined reproductive rights movement. What happens when one person’s “right” conflicts with another’s?
With abortion, advocates simply claimed the pre-born child was a mere “clump of cells” and thus had no rights to challenge the right of the mother (or trafficker) to an abortion. They could then pretend that only the rights of the mother, and not the preborn child or the father, mattered. This resolves the dilemma but only by dissolving it.
The same dilemma lurks in Proposition 3. It may confer a legal right to infertility care, including IVF or surrogacy. That would mean that men who need to purchase a woman’s eggs or rent the use of her womb to artificially produce children, could claim that they have a right to use another woman’s body. Of course, they would pay her and abide by the contract. But the fact that a constitutional amendment would confer on men a right to a woman’s body feels slimy, to say the least.
This entitlement to another woman’s body is far from hypothetical. In 2021, for example, New York legalized commercial surrogacy—that is, paying a woman to rent her womb. This came after extensive efforts by state Sen. Brad Hoylman who struggled to find a woman in New York willing to provide the use of her body altruistically. Instead, Hoylman and his male partner were “forced” to travel as far as California to find a woman willing to serve as a commercial surrogate.
The wild part is that altruistic surrogacy was already legal in the state of New York. Yet very few women want to enter this demanding, and unnatural, process. Since there are few women willing to serve as surrogates altruistically, the senator pushed to legalize commercial surrogacy.
The United States, and most nations, ban organ selling. Why? Because they realize that if someone is desperate, they may do things contrary to their long-term well-being. Some would say that if compelled by such a need they’re not making a “free” choice but are being exploited in their vulnerability. The same should apply to commercial surrogacy.
If women, in Michigan or New York, won’t volunteer to serve as surrogates, then a constitutional amendment or bill legalizing surrogacy for pay would likely exploit desperate women.
Let this sink in: Michigan’s Proposition 3, if passed, could provide men with a constitutional right to exploit another woman’s body to create and bear children. There is why many states and nations have retracted or declined to legalize commercial surrogacy. Michiganders, take note.
Emma Waters is a research associate in The Heritage Foundation’s DeVos Center for Life, Religion and Family.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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