Really, REALLY Bad Arguments Against Marriage Equality

My attention was drawn to…THIS, today. It kind of makes me feel sorry for the opposition. Maybe, kind of, almost. If I’m inarticulate, it’s because reading this has caused me to lose brain cells.

For Charles Cooper, the lawyer defending Proposition 8, California’s gay-marriage ban, the worst moment of the proceedings probably came when Elena Kagan zeroed in on the most consistent and conspicuous weakness in the anti-gay-marriage case, namely that the unchanging purpose of marriage is procreation. (And in that purpose lies the state’s constitutionally defensible rationale—something above mere animus towards gays and lesbians—for excluding them from the institution.) Cooper had been explaining his side’s concern “that redefining marriage as a genderless institution will sever its abiding connection to its historical traditional procreative purpose” and “refocus” it—away from children and toward “the emotional needs and desires of adults.” Suppose, Justice Kagan asked Cooper, that a state were to pass a law saying it would no longer give marriage licenses to heterosexual couples in which both people were over fifty-five. Would that be constitutional? No, said Cooper. But why not, Kagan persisted, if gay couples could be constitutionally denied marriage rights for the reasons he stated? Cooper mustered a rather weak empiricism: “Even with respect to couples over the age of fifty-five, it’s very rare that both parties to the couple are infertile”; men, he said, “rarely outlive their fertility.” Kagan was skeptical. “I can assure you that if both the woman and the man are over the age of fifty-five there are not a lot of children coming out of that marriage,” she said, eliciting the biggest laugh of the morning.

I’m so sorry that I wasn’t sitting next to Justice Kagan. It would have been so, so much fun to ask Mr. Cooper to elaborate.

Dude…are you aware that a post-menopausal heterosexual couple is not HALF-fertile? If the woman can’t get pregnant, then she and her husband, together, are not fertile AT ALL. A heterosexual relationship involving a woman who has outlived her menstrual cycles is not a procreative one. Honestly, young lesbian couples make more babies than 55-year-old straight couples. You see, Mr. Cooper, the role of the uterus in reproduction is absolutely essential and non-fungible. It’s all or nothing, and it’s very costly to the body. Sperm, on the other hand, is not that difficult to acquire!

In which I comment on the Romney family’s reproductive lives.

You may have heard some buzzing about how Mitt Romney’s oldest son Tagg and his wife Jennifer got their twin boys from a surrogacy agreement that included an abortion clause:

“If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate.”


“In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents.  In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision.”

And since Grampa Mitt is running on a pro-forced-birth campaign, everyone is making an issue of this, like this Means Something for the anti-choice movement. It is arguably relevant that Mitt helped pay for the surrogacy arrangement, but let’s put that aside for a moment.

The problem is, according to the attorney who drafted the agreement, the abortion clause wasn’t supposed to be there:

We’ve learned Tagg chose the same surrogate in 2009, who gave birth to a boy. Attorney Bill Handel — a nationally-known expert in surrogacy law who put the deal together between Tagg and the surrogate — tells TMZ when the 2009 contract was drafted there was no Paragraph 13 providing for abortion because Tagg and his wife didn’t want it.

Handel says in 2011, when the second contract was being drafted, everyone involved “just forgot” to remove Paragraph 13.  Handel says, “No one noticed.  What can I say?”

To be honest—we all know I’m a rabid baby-eating pro-choicer around here, right?—I find it more disturbing that they didn’t have the abortion clause in their surrogacy agreement in 2009. What would’ve happened if the surrogate had developed dangerous pregnancy complications? They couldn’t have stopped her from getting an abortion, but they probably would’ve had grounds to penalize her for it. I’m not coming to this story from the point of view of a lawyer or ethicist, or any expert in gestational surrogacy, just as someone with a generalized awareness of the ugly shit that can happen in a pregnancy and the potential for exploitation in any reproduction-related arrangement. I don’t think gestational surrogacy is inherently unethical or exploitative*, but it has a wide range of potential for unethical and exploitative practices, and there’s a delicate balancing act in an ethical surrogacy agreement.

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It gets so much worse than that, Dr. Hampikian.

In a random fit of “What brought that on?”, the New York Times has run an op-ed from Greg Hampikian about how the entire male sex is becoming increasingly irrelevant to human life. Being a professor of both Biology and Criminal Justice, Dr. Hampikian gives us both the physiological:

Then, at some point, your father spent a few minutes close by, but then left. A little while later, you encountered some very odd tiny cells that he had shed. They did not merge with you, or give you any cell membranes or nutrients — just an infinitesimally small packet of DNA, less than one-millionth of your mass.

Over the next nine months, you stole minerals from your mother’s bones and oxygen from her blood, and you received all your nutrition, energy and immune protection from her. By the time you were born your mother had contributed six to eight pounds of your weight. Then as a parting gift, she swathed you in billions of bacteria from her birth canal and groin that continue to protect your skin, digestive system and general health. In contrast, your father’s 3.3 picograms of DNA comes out to less than one pound of male contribution since the beginning of Homo sapiens 107 billion babies ago.

The hand-wringing about infinitesimal mass is a red herring; no matter how tiny in terms of body weight contributed, children nevertheless walk around with approximately 50% of their fathers’ DNA. The irony to that figure is that, since the X chromosome is bigger than the Y, boys actually get fewer genes from their fathers than do girls, but I digress. We might as well be talking about how much my Lion OS weighs down my MacBook.

That said, his point is taken, and his perspective is appreciated, that once the sperm has been procured, all the biological work of making a human being falls on the mother. And since we now have frozen sperm and other ARTs, women don’t really need to deal with men if our goal is to make more of ourselves. This is not exactly a new idea, and yet somehow, most women are still actively heterosexual.

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