Straddling the Columbia: A Constitutional Law Professor's Musings on Circumventing Washington State's Criminal Prohibition on Compensated Surrogacy

In this Article, I recount—through both the prisms of an intended parent and a constitutional law scholar—my successful efforts to become a parent via compensated surrogacy and egg donation. Part I of this Article provides a narrative of my experience in becoming a parent via compensated surrogacy, and the various state and federal legal roadblocks and deterrents that I encountered along the way, including Washington State’s criminal prohibition on compensated surrogacy as well as federal guidelines issued by the U.S. Food and Drug Administration regarding the use of sperm by gay donors in the process of in vitro fertilization. Part II of this Article considers the extent to which laws that criminalize or otherwise restrict one’s ability to enter into surrogacy arrangements run afoul of either the substantive protections of the Due Process Clause or the guarantees of the Equal Protection Clause. Part III of this Article considers the extent to which laws that stand in the way of intended parents establishing legal parentage of children born via surrogacy violate those same constitutional guarantees.