AmericaBlog points out that people who donate embryos to be raised as “snowflake” children tend to be conservative Christians who, at least in some instances, specify that their children be raised by heterosexual conservative Christians.
At the risk of being kicked out of the liberal club, I have to say this does not bother me on a moral or legal level.
Legality first: These are privately run organizations and thus, unless their conduct runs afoul of a particular state law, they can do what they want. Generally speaking, it is unlikely that a state would forbid the conduct here, because most antidiscrimination laws recognize that there is a zone of privacy that allows individuals to discriminate however they want.
A classic example is the federal Fair Housing Act. The Act generally prohibits landlords from refusing to rent to people on the grounds of race or gender or marital status. However, the Act does not apply to, say, people who want to rent out their basement apartment or who are looking for a roommate. Why? Because there’s a judgment that when you invite someone to live in your home, you get to choose who that person is — even if your criteria is offensive.
The same principle would apply to snowflake babies. I’m not prepared to say that a person giving up embryos has no personal interest in controlling the types of families who raise them. After all, plenty of states allow birth mothers to make choices about who the adoptive parents will be, and I can’t say there’s anything wrong with that, either, even if the birth mother chooses criteria that I personally would find offensive.
In a roundabout way, the Supreme Court will soon be deciding this issue in the context of the Solomon Amendment, which denies federal funding to schools that deny military recruiters access to campuses. The Third Circuit, relying on earlier precedent that held that the Boy Scouts of America have a First Amendment right to be as bigoted as they please, held that the Solomon Amendment interfered with private schools’ First Amendment rights to choose with whom to associate.
Though the Third Circuit’s reasoning may have been off (more on that later), the principle is similar to the snowflake baby problem. We want to prevent discrimination, but at the same time, we must recognize as a society that there is a zone of personal choices where people can discriminate to their hearts’ content. I’d say embryo implantation falls within that zone.