Obergefell and the “New” Reproduction

Alternative reproduction has become the new frontier in the continuing culture wars over the family. Commentators with longstanding anxieties over non-traditional kinship have turned their regulatory gaze to it, as have more progressive scholars who support non-traditional family formation but nevertheless favor proposals to regulate the “new kinship” and the “new reproduction.” Excavating Obergefell v. Hodges’s less obvious reproductive dimension, this Essay argues that the Court’s landmark marriage equality decision renders these regulatory proposals of alternative procreation constitutionally vulnerable. It further maintains that Obergefell could transform even existing laws on procreation by eroding a distinction on which so many of them rest: the distinction between sexual and alternative life creation. Thus understood, Obergefell is a case that unsettles not just the traditional underpinnings of marriage, but also the very edifice supporting the legal regulation of intimate and family life. This Essay proceeds as follows: Part I sets forth commentators’ proposed regulations of alternative reproduction and their