Moral, legal factors make surrogacy veto best choice

Even if there hadn’t been a good moral argument for Gov. Bobby Jindal to veto HB 187, there was an additional good policy argument to do so.

This past weekend Jindal issued a veto of the bill by state Rep. Joe Lopinto that would have allowed the state’s judiciary to enforce surrogacy contracts. The bill would have allowed a married couple to hire a surrogate mother aged 24-35 to carry embryos from them and to pay only for expenses for the task and lost wages by the surrogate. It was a much narrower bill than one Jindal vetoed last year tailored to overcome many past objections to it.

But it continued to draw opposition from some, including Louisiana’s Catholic bishops, because the entire concept of surrogate births is contrary to Catholic moral teaching. It denies the unifying grace of marriage and invites the indiscriminate disposal of human life, the unused embryos. And if Jindal has demonstrated nothing else during his political career it’s that on legislation concerning bioethical questions he takes his Catholicism seriously in informing his actions concerning these.

And in light of court decisions, beginning only days after his veto of the previous version, since then another reason came to the forefront. Now that there is a jurisprudential move on to declare marriage of a single man and a single woman as somehow discriminatory, possibly if enacted the law would have been challenged by same-sex couples or single individuals claiming the limitation to married couples met this standard, much like the parasitic alien in the Alien movie series, now trying to burst out of its half-baked juridical shell providing a basis on which to declare the bill’s limitation unconstitutional. Once having surrogacy enforceable in state courts for same-sex couples, this could provide precedence to fuel attempts to bring the special privilege of marriage to them.

The veto takes care of that, and author Lopinto interestingly notes that there would be no override attempt given his judgment of legislative sentiment. Unlike last year, when the bill in question came to the governor the day before the session ended, meaning he could sit on it until the session’s adjournment given a 10-day window to deal with bills (20 when out of session) and then veto it that could be undone only through the calling of an unprecedented veto session, this year the bill came in more than 10 days before the end of the session so Jindal had to deal with it. However, he only let eight of those 10 days elapse and nothing required him to send it back so quickly, after three days, as he is allowed during a session 12 days passage before a vetoed bill must return to its chamber of origin.

In that sense, this could mean that Jindal signaled openness to have an override occur, by allowing the Legislature an easier route to perform one than not calling off a veto session. From the perspective of his religious views, casting the veto accorded to them, but, perhaps in a recognition that he governs in a secular republic, he created an easier path for those who discount religious belief or who perceive no immorality in surrogacy to have their views become law.

The alternative is that his intelligence operations informed him that override votes weren’t there, and he decided to wrap things up sooner rather than later. That might provide a more valid interpretation, given the other reason why the bill spelled trouble, for if the bill could provide an avenue for forces seeking to redefine the Constitution and what marriage means, why not pursue the most effective way of keeping it from becoming law? Even as the veto message makes mention only of the pro-life argument, it could have been part of Jindal’s decision calculus.

Importantly, regardless of the bill’s demise, surrogacy remains entirely legal in Louisiana, only that any agreements about it cannot be enforced. And given its moral difficulties and that any bill codifying it could be used, either by sanctioning positively surrogacy for same-sex couples or through challenges to a bill denying it to them, as a tool to erode the proper definition of state-recognized marriage as between a single man and a single woman, such a bill in any form best not become law. Therefore, Jindal acted wisely.