The United States currently has a hodge-podge of state-level legislation regulating surrogacy. High-profile disputes over surrogate pregnancies demonstrate this is not a workable solution. Regulating surrogacy does not protect women and children. It only commodifies them more.
The current debate over surrogacy in the United States has two main positions. One side argues we should allow the practice with regulations. The other side argues it should be prohibited altogether. All parties in the debate generally acknowledge that there can be abuses and exploitation, and that the best interests of the children produced should be considered.
Is a contract that involves the exchange of money for the gestation and delivery of a child against public policy? The debate over this question both fuels and is fueled by competing ideas on parenting, family configuration, women’s rights, and the human desire for children. In recent decades, a new, commercial, profit-making industry has emerged, making the regulation vs. prohibition debate ever more pressing.
The crux of the disagreement is over what should be done in order to minimize the harms to those women who serve as surrogates and to the children who are produced from these contract arrangements. How can we protect all the stakeholders, including the intended parents? Many trust that regulations, laws, and contracts will provide sufficient protection. My position, however, is that regulations, laws, and contracts do not—in fact, they cannot—protect women and children. The only way forward is to pass laws to stop surrogacy now.
Milestone “Traditional” Surrogacy Cases
The first surrogacy arrangements were what are now called “traditional” surrogacies, in which the child the surrogate carries is genetically related to her—that is, created using her own egg. These early surrogacies were achieved by artificial insemination, generally with the sperm of the intended father. More common today are “gestational” surrogacies, arrangements in which the surrogate is not genetically related to the child she carries. In such cases, either donor eggs are used, or the egg of the intended mother is used. The sperm may come from the intended father (or fathers, in the case of gay male couples), or from a sperm donor.
Elizabeth Kane (a pseudonym) gave birth to a baby boy on November 9, 1980, in what is the first traditional surrogate contract pregnancy in the United States. Kane was artificially inseminated with the intended father’s sperm, producing a child biologically related to Kane and the intended father, who was married to a woman unable to bear children. Kane’s book, Birth Mother: The Story of America’s First Legal Surrogate Mother, documents her story. It is a heartbreaking saga of depression, despair, and damage to her family. Kane was eventually forced to surrender her child in exchange for $11,500.
Only six years later, another surrogacy captured the nation’s attention. On March 27, 1986, in New Jersey, Mary Beth Whitehead, a married mother who served as a traditional surrogate for William and Elizabeth Stern, gave birth to a little girl, the biological child of William Stern and Whitehead. This baby girl is famously remembered as “Baby M.”
Whitehead agreed to be artificially inseminated with the sperm from the intended father, and the Sterns agreed to pay $10,000 to Whitehead in return for her surrendering the child at birth and terminating her parental rights. But before that could happen, Whitehead came to the conclusion that she could not relinquish her child. What ensued was an extremely public custody battle that played out in national news and in the courts.
Eventually, the New Jersey Supreme Court reached a unanimous decision In the Matter of Baby M, which fueled a brief national policy debate. The court’s decision prohibited surrogacy arrangements in that state unless “the surrogate mother volunteers, without any payment, to act as a surrogate, and is given the right to change her mind and to assert her parental rights.” The law in New Jersey continues to hold that traditional surrogacy is illegal, and only compensated gestational surrogacy is prohibited.
The Rise of Gestational Surrogacy
The next notable case in the United States was unique in that it involved the first disputed commercial gestational surrogacy. The shift away from traditional surrogacy to gestational surrogacy was underway. In September 1990, Anna Johnson, a twenty-nine-year-old African-American woman and former Marine, entered into a gestational surrogacy contract with Crispina and Mark Calvert. As a result of a hysterectomy, Mrs. Calvert was unable to carry a pregnancy, but because her ovaries had not been removed, she was able to provide her eggs. The Calverts paid Johnson $10,000, per the contract.
Johnson bonded with the child in her womb and sought legal recognition as the mother, with access to the child. California Judge Parslow placed great weight on the fact that the Calverts were the genetic parents, declaring that Johnson was a “genetic stranger” to the child. Judge Parslow acknowledged Johnson’s “nurturing, feeding, and protecting the child,” but held that the role of the “gestational environment” of the womb was not clear. Further, he saw “no problem with someone getting paid,” and made the point that surrogacy was not baby selling but compensating the surrogate mother for pain and suffering. In ruling against Johnson, Judge Parslow found it in the best interest of the child to recognize as “mother” the person intending to raise the child according to the prior written agreement.
The case eventually made its way to the California Supreme Court, which rejected the argument that surrogacy contracts are against public policy, thereby making California a “regulation” state. In a powerful dissenting opinion, Justice Kennard stated, “the majority recognizes no meaningful contribution by a woman who agrees to carry a fetus to term for the genetic mother beyond that of mere employment to perform a specified biological function.” Further, Kennard recognized that the “gestational mother has made an indispensable and unique biological contribution, and has also gone beyond biology in an intangible respect that, though difficult to label, cannot be denied.”
These three cases prompted several states to enact surrogacy legislation. As the first state to make surrogacy a felony, punishable with up to five years in jail and a fine of up to $50,000, Michigan became a “prohibition” state. In 1988, The New York State Task Force on Life and the Law released a report, following one year of study after the Baby M case, with the following analysis:
The Task Force unanimously recommended that public policy should prohibit commercial surrogate parenting. The members concluded that the practice could not be distinguished from the sale of children and that it placed children at significant risk of harm. They also agreed that surrogacy undermines the dignity of women, children, and human reproduction. The Task Force rejected the notion that rights as fundamental as the right of a parent to a relationship with his or her child should be bought and sold or waived irrevocably in advance of the child’s birth.
Ultimately, New York deemed surrogacy contracts contrary to public policy, and thus void and unenforceable. It remains a “prohibition” state, although recent efforts have sought to change it to a “regulation” state.
Thirty-seven years after the first contract pregnancy legal dispute, we find ourselves still debating whether allowing contracts that involve the exchange of money for the gestation and delivery of a child are against public policy. Without any federal policy regulating or prohibiting contract surrogate pregnancies, this debate continues state by state. Today, some states are entirely silent on the matter, some states regulate surrogacy through laws and contracts, and some states prohibit the practice altogether by refusing to recognize surrogacy contracts as legal or enforceable.
Perhaps the most effective argument against surrogacy agreements is the language of the contracts themselves. In Part 2 of this article (coming next week) I will highlight language from actual contracts to show how contract surrogacy pregnancies commodify both women and children.
This article originally appeared at http://www.thepublicdiscourse.com/2017/11/20390/
- Jennifer Lahl, MA, BSN, RN, is founder and president of The Center for Bioethics and Culture Network. Lahl couples her 25 years of experience as a pediatric critical care nurse, a hospital administrator, and a senior-level nursing manager with a deep passion to speak for those who have no voice. Lahl’s writings have appeared in various publications including Cambridge University Press, the San Francisco Chronicle, the Dallas Morning News, and the American Journal of Bioethics. As a field expert, she is routinely interviewed on radio and television including ABC, CBS, PBS, and NPR. She is also called upon to speak alongside lawmakers and members of the scientific community, even being invited to speak to members of the European Parliament in Brussels to address issues of egg trafficking; she has three times addressed the United Nations during the Commission on the Status of Women on egg and womb trafficking.