Wednesday, October 05, 2005

(Straight White Christian) Married Couples Only

Indiana Republicans are drafting a bill to criminalize unauthorized reproduction.

Yes. Read that again slowly. The Indiana GOP wants you to apply to the state for permission to reproduce. Married couples only need apply.

The law is not only absurdly offensive, heterosexist, and arguably racist (read on), but also flagrantly unconstitutional. But the very notion of constitutionality depends on the whim of the Supreme Court.

And, with the balance of the Supreme Court in peril, and Democrats showing no signs of opposition to Bush's SCOTUS nominees, the unconstitutionality of this bill may be the point: a pretext to take a challenge on the bill all the way up to the Supremes, and in one fell swoop wipe out the landmark privacy decisions of Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas.

Let's review:
Republican lawmakers are drafting new legislation that will make marriage a requirement for motherhood in the state of Indiana, including specific criminal penalties for unmarried women who do become pregnant "by means other than sexual intercourse."

According to a draft of the recommended change in state law, every woman in Indiana seeking to become a mother through assisted reproduction therapy such as in vitro fertilization, sperm donation, and egg donation, must first file for a "petition for parentage" in their local county probate court.

Only women who are married will be considered for the "gestational certificate" that must be presented to any doctor who facilitates the pregnancy. Further, the "gestational certificate" will only be given to married couples that successfully complete the same screening process currently required by law of adoptive parents.
Republican Senator Patricia Miller, Health Finance Commission Chair and sponsor of the bill, claims the bill's purpose is:
  • to make Indiana's currently vague laws prohibiting surrogacy more enforceable;

  • to restrict access to infertility treatments;

  • and to make marriage a legal prerequisite for motherhood.
  • And Miller's account may be what the GOP would like Indiana residents to believe. But an examination of the current draft of the bill reveals that the reach of the bill as worded is, of course, far greater.

    First of all, let's look at whom the Indiana Republicans do not intend to "allow" to reproduce through fertility treatments:
    [The bill] defines assisted reproduction as causing pregnancy by means other than sexual intercourse, including intrauterine insemination, donation of an egg, donation of an embryo, in vitro fertilization and transfer of an embryo, and sperm injection.

    The bill then requires intended parents to be married to each other and specifically says an unmarried person may not be an intended parent.
    The target is to criminalize fertility treatments for single women. The bill is very clear on the marrieds-only aspect. It clarifies the definition of "intended parents" with: "The term does not include an unmarried person."

    Following on the heels of Indiana's legislation against same-sex marriage(/unions), the bill also targets same-sex couples. In short, this is the Anti-Turkey Baster Bill. If a child is not conceived through sexual intercourse (which the bill rigorously defines, but I'll spare you the Republican law-porn), under the bill a crime has been committed. More on that later. (And yes, the Virgin Mary would have been guilty of a crime if Jesus had been born in Indiana.) Of course, same-sex couples retain for the moment the distasteful option of heterosexual sex in order to conceive. (All my heterosexual friends out there, if you don't think this presents an onerous burden, ponder a situation where your state government requires you to go against your own nature and commit a homosexual sex act in order to be able to parent legally. Enough said.) From this perspective, the bill could just as well be titled the Knock Up A Stranger For Cash Act.

    However, clearly not all married couples will be able to pass the "assessment" in order to receive their state-mandated "gestation certificate." How else does the bill seek to criminalize parenthood?
    Some of the required information includes the fertility history of the parents, education and employment information, hobbies, personality descriptions, verification of marital status, child care plans, letter of reference and criminal history checks.

    A description of the family lifestyle of the intended parents is also required, including individual participation in faith-based or church activities.
    "Fertility history" is code for abortion, folks. The specific language of the bill is: "The fertility history of the intended parents, including the pregnancy history and response to pregnancy losses of the woman." Indiana has Kansas-envy. The State wants your abortion records and your past reproductive choices will now be used to take away your civil rights in the Republican state. (Or at least if you're a woman. You'll note that if the "husband" has previously been involved in a pregnancy that was terminated, that history isn't considered relevant under the bill.)

    Plus, married Christians only need apply. In fact, the bill specifies under personal information that intended parents need to include information about their "values." The Republican state wants to hand out legal rights based on your public profession of State-endorsed religion.

    I know that some readers will take umbrage with me assuming that "faith" and "church" in the bill refer to Christianity, to which I have two replies. 1) Do you honestly think, in climate of anti-Islamic hysteria which the Bush administration has deliberately fostered, that admitting to regular mosque attendance is going to endear you to the Republican government of Indiana? 2) The issue, as usual, with the wording of the bills is that the criteria listed are subjective and open to abuse--especially partisan and ideological abuse. The state could just as easily deny your reproductive rights because as part of your "values," or during your psychological assessment, you mention you are vegetarian, communist, feminist, or a Democrat. This bill gives the state the power to do just that.

    Section 15 of the bill details a range of criminal offenses on the grounds of which the court will deny permission for parentage. This provision is a stealth race clause. African Americans are disproportionately punished in the criminal justice (sic) system: African American males make up 8.3% of Indiana's male population, but 38.1% of Indiana's incarcerated male population. Note that for example, possession of marijuana is a class D felony. (Do we have to revisit yet again the effects of race and class in America? In the light of William Bennett's recent remarks, perhaps. If you need a refresher course, please revisit Ian Welsh's September article on America's Underclass.) Short version: the bill is racist in that it will disproportionately deny legal permission for parenting to African Americans.

    So what happens in Indiana if you aren't a straight, married, white heterosexual, and you seek out an assisted pregnancy?
  • An intended parent who skirts the law gets a Class B misdemeanor--for a fixed sentence of up to 180 days and/or a $1000 fine.

  • A doctor who assists the unauthorized conception gets a Class B misdemeanor. (The wording of the bill doesn't make it clear if this provision applies to the friend who handles the Turkey Baster.)

  • The bill holds out the big penalty for anyone who helps a couple con their way into a "gestational certificate"--a Class A misdemeanor, for a fixed sentence of up to 1 year and/or a $5000 fine.
  • Access to fertility treatments is already limited socio-economically because of the prohibitive cost. The Indiana GOP wants this bill to further limit the reproductive rights of single women and same sex couples--by denying them access to safe, legal medical procedures. (Sound familiar?) The defacto racial discrimination of the bill will potentially limit the reproductive rights of African Americans disproportionately. And yes, the same party that seeks to criminalize abortion is also trying to criminalize unauthorized pregnancy.

    The bill is part of the slippery-slope assault on sexual privacy, on reproductive rights, on medical records privacy (cf abortion records access, above), on homosexual civil rights. It may well also be part of the less-publicized slippery-slope campaign to ban both stem cell research and In Vitro Fertilization (IVF) as a subversion of God's will. It is about the GOP agenda to treat women's bodies as property of the state. It is about Republicans criminalizing pregnancy, and arrogating the right to decide if mothers have legally conceived their offspring. When the only legal Republican option for pregnancy is for a woman to marry or copulate with a man, the bill is fundamentally about institutionalizing male domination/control of women by criminalizing choices a woman makes without male permission.

    Granted, the bill should be unconstitutional. However, in the GOP playbook, "should" doesn't count for very much. Based on the success of similarly ridiculous anti-gay and anti-abortion bills in other states, there is a reasonable chance that this bill will not only pass the Indiana General Assembly (GA), but also provide grounds for a challenge all the way up to the Supreme Court, where its real objective lies.

    I will go further into the GA and SCOTUS in the next post.
    You can find further discussion at:
    Booman Tribune
    Jill on Feministe
    Lauren on Feministe
    Julien's List
    Media Girl
    Pam's House Blend
    Pandagon
    Progressive Independent
    Republic of T
    Suburban Guerilla
    Cross Posted on BOP


    More articles in the Turkey Baster Bill Series
    Part II on Republican Strategy
    Part III Bill Update
    Part IV SCOTUS Resource Roundup


    This article is also cross-posted on BOP News. Please feel free to join the extensive discussion there as well.
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