Thomas Reuss, left, and Dennis Reuther of Germany, where surrogacy is illegal, used a surrogate in Pennsylvania to have their son, Nico. Gordon Welters for The New York Times
People unable to bear children have increasingly turned to women who bear children for them, often by transferring an embryo created by in-vitro fertilization. Because legal and social views on surrogacy vary from nation to nation (and even state to state), prospective parents often engage surrogates in the United States and in developing countries. Controversy has clouded this issue.
What can be done to ensure that birth surrogacy is safe, ethical and protective of both the birth mother and the intended parents?
Legalize Surrogacy So It Can Be Regulated
by Nidhi Desai, a partner in Ballard, Desai & Miller, a law firm specializing in adoption and reproductive issues.
The current debate surrounding gestational surrogacy has lost sight of the incredible potential for these arrangements and has instead turned the issue into a political sword to fight any number of tangential issues. The question we should be asking as a society and within each state is how do we legislate these arrangements in a manner that protects all parties involved?
To protect all parties involved and address all interests, surrogacy should be widely legalized so that each state develops a framework within which it defines how we balance the complex interests of the parties.
Rather than breeding hostility, states should develop a framework for resolving disputes, assuring consent and protecting the families.
In Illinois we have done so by requiring fundamental safeguards. This involves, among other requirements, obtaining the surrogate’s meaningful consent and understanding after required medical consultation, independent legal representation and psychological counseling for all parties involved. Illinois further protects the process by ensuring that regardless of what happens to the intended parent or parents during the pregnancy, the surrogate is treated fairly and consistent with the terms of the agreement, and that intended parents, the surrogate and the state have the security of knowing that the intended parents are legally responsible for any resulting child.
The written agreements that must be executed prior to the start of medical procedures identify who assumes the respective risks and responsibilities, and contemplate an array of contingencies.
Over the years, I have encountered countless surrogates excited to carry a child for an individual who would not otherwise have the ability to do so, and intended parents who have been overwhelmed by the kindness of women who have allowed intended parents to recognize their dreams of parenthood. Of course some of these cases have their challenges, but setting enforceable expectations at the beginning of the relationship goes a long way to resolving disputes as they arise.
Rather than creating an environment of hostility, states should be working towards developing a framework of their own design for resolving disputes, assuring meaningful consent and protecting the interests of the resulting family. Turning this into a political tussle over issues more often tied to the debate over abortion is creating confusion and uncertainty for intended parents, gestational surrogates, and the children born of these arrangements.
Ultimately this debate comes down to whether legislatures believe that people who are otherwise unable to bear children should be prevented from having an opportunity to build their family in this manner or whether we should be working to ensure that these arrangements are respectful and safe for all involved parties.
Paid Surrogacy Is Exploitative
by Arthur Caplan, the Drs. William F. and Virginia Connolly Mitty Professor and founding head of the division of bioethics at New York University Langone Medical Center in New York City.
Reproductive tourism is enjoying a bit of an economic boomlet. People are traveling all over the globe to pay surrogate mothers to carry their embryos so they can have a child that is biologically related to them. A few come to the United States to find surrogates willing to rent their wombs. Many go to India, where a thriving trade exists in wombs for pay among the poorest residents. Soon some may be traveling to other nations to buy a womb to transplant from a woman willing to sell, as progress continues in uterine transplantation.
Surrogates are being sought in the developing world. But the only motive for being a paid surrogate there is poverty.
Views about the morality of paid gestational surrogacy vary all over the globe. Many European nations outlaw it as do some American states.
I have no issue with altruistic surrogacy. It is paid surrogacy that gives me ethical heartburn, especially paid surrogacy that involves travel to other nations to find poor women to bear babies.
The problem is exploitation. Women can make a considerable sum of money if they take fertility drugs, agree to the equivalent of medical prison confinement and bear a healthy baby. So what is the problem when a very poor woman makes money and someone goes home with a baby?
The problem is that the only motive for being a paid surrogate is poverty. Forget all the talk about wanting to help others. The only reason a woman in India, South Africa or Ukraine would be a surrogate is for desperately needed cash. If your only way to earn a living is to enter the sex trade or sell your womb, is that really a choice?
Some argue that women in these poor nations are allowed to do other menial, risky and difficult work, like making clothing in sweatshops. But, as the saying goes, two wrongs don’t make a right. The women in the sweatshops are being exploited. They too deserve better choices and better options rather than the relatively well-off buyers who ignore their exploitation because they love the lower cost of clothes.
Some say just let women choose if they want to be a paid surrogate. I agree. When they have humane options to choose, then surrogacy won’t be exploitative. But often they don’t, and then it is.
Professionals Must Deal With a Surrogate’s Emotional Needs
by Andrea Braverman, a clinical associate professor of obstetrics and gynecology, and of psychiatry and human behavior, at the Sydney Kimmel Medical College of Thomas Jefferson University. She has worked in the surrogacy field since 1989.
Women are able to make better choices about participating in gestational surrogacy when they are fully informed about the medical, emotional and legal challenges of the process. Psychological counseling and screening for the gestational surrogate and intended parents are a critical part of how surrogacy has been made safe, ethical and protective for everyone involved.
Education and evaluation through counseling provide an opportunity for reflection and choice, which is critical for reducing the risks of the surrogacy process.
Education and evaluation through counseling reduces risks by screening for psychopathology or unrealistic expectations. Research shows that psychological counseling helps surrogates and intended parents collaborate to create a positive experience.
Counseling focuses on important issues to the surrogate and the parents; in particular, the expectations both parties have of each other and from the experience. Emphasis is placed on the relationship (ranging from formal to friendship), communication and expectations during and after delivery. Assessing the interests and needs of everyone involved reduces the risk of a mismatched surrogate and intended parent.
Counseling guides the gestational surrogate through any emotional upheaval that may arise during a pregnancy – not just the good feelings, but also “the bad and the ugly.” The surrogate is directed to think about how the pregnancy may affect her own children, partner, family, friends, community, religious beliefs, employment and all the other aspects of her life that this decision may touch. Her partner is involved in the counseling process, as the pregnancy may put demands on their time, such as increased responsibilities in the home, or even restrictions on their sex life. The partner is also enlisted to help explain surrogacy to any existing children, and to help create a strategy for involving them in the process.
Psychological counseling ensures that there is time and space for a myriad of considerations, and provides an opportunity for the surrogate and her partner to clarify their needs and goals, and reducing risks. Intended parents and surrogates, with their families, can fully engage in a respectful, considerate relationship or they can choose to keep certain boundaries in place.
The Role of International Law for Surrogacy Must Be Expanded
by Lisa Ikemoto, a professor at the University of California, Davis, School of Law
Surrogacy forms the basis of a multi-billion dollar industry in the United States and globally. The top surrogacy destination spots include India, Thailand, and the United States. Mexico, Uganda and, because of recent events in Ukraine, Romania, are emerging as major surrogacy centers.
The common factors are availability of biomedical expertise, availability of women with few economic alternatives, and few or no legal restrictions of the medical, commercial, and familial practices used in surrogacy.
In the global market, legal uncertainty makes surrogacy fraught for intended parents and for birth mothers.
In the global market, legal uncertainty makes surrogacy fraught for intended parents. Recent events have highlighted the birth of children who lack legal citizenship, legal parents, or who were born for parents of questionable fitness.
Surrogacy is also fraught for surrogates. Meaningful informed consent does not always occur. Any pregnant woman faces real risks of miscarriage, pregnancy-related conditions, and birth-related injury, illness, and death. The surrogacy setting can incentivize practices that subordinate risk to the goal of pregnancy. For example, high drug dosages to maximize egg production increases ovarian hyper-stimulation rates for women undergoing ovarian stimulation and in vitro fertilization. Fertility procedures increase multiple pregnancy rates and the attendant risks to women and resulting children. Scheduled cesarean delivery enables intending parents’ attendance at birth, but increases injury and mortality rates for women and children.
Surrogacy arrangements often restrict personal liberty. If the fertilization procedure, pregnancy or birth injures the woman, if pregnancy or a live birth does not occur, if intending parents fail to pay, if the agency mishandles the money or folds altogether, the surrogate faces financial loss. Surrogates also experience social stigma and the possibility of raising the child or children, in some cases.
Surrogacy also raises questions about the moral nature of the transaction. In commercial surrogacy, what is being paid for? Women’s time and effort, women’s reproductive capacity, babies? Does surrogacy reproduce gender and class stratification? Calls to regulate have resurfaced.
Of the nations that regulate surrogacy, most have banned commercial surrogacy or have banned surrogacy altogether. Other jurisdictions have taken less stringent approaches or have not addressed surrogacy at all.
It is time to consider the role of international law. The absence of law creates a “race to the bottom,” which serves agencies and clinics well, but leaves surrogates, intended parents, and children unprotected.
Including global surrogacy under the Hague Convention on Intercountry Adoption, which helps pressure nations to improve their laws, is a possible pathway.
At the least, surrogacy should only move forward when children born of surrogacy will have legal parents and citizenship assured, when surrogates’ health, well-being and daily lives are prioritized, and when intended parents are protected against discrimination based on marital status, sexual orientation, or other status.
When a Surrogate Has a Genetic Role
by Margaret Swain, a lawyer specializing in assisted reproductive technology law, adoption and guardianship, is a fellow of the American Academy of Adoption Attorneys.
Because of improved technology, as well as societal mores and law, the most common form of surrogacy is now gestational surrogacy, in which a woman receives an I.V.F.-created embryo that is genetically unrelated to her. She agrees to gestate the pregnancy and upon the birth of the child, honor her commitment that the intended parent or parents have immediate custody of the child, and waive any potential parental rights.
Since there is no genetic connection, then, in most jurisdictions, no adoption is needed to finalize the parental rights of the intended parent or parents.
Most states do not approve of arrangements when a baby results from the fertilization of a surrogate’s egg, rather than an implanted embryo.
In contrast, a traditional surrogate is inseminated with the sperm of either the intended father or a sperm donor, and agrees to place the child with the intended parent or parents following birth. In the majority of jurisdictions, because of this genetic connection, an adoption (or some other type of parental rights termination) must occur before the parental rights of the intended parent or parents are finalized. The birth mother/surrogate has the same rights as any birth mother, including the right to revoke a consent to placement of the child.
In Arkansas and Wisconsin traditional surrogacy contracts are enforceable under case or statutory law. In those places, the intended parents, the surrogate and the child are ensured of the outcome of the arrangement, and the permanence of the placement is not subject to challenge, provided the arrangement falls within the requirements of the law.
Whether traditional surrogacy arrangements should be generally enforceable is an ongoing question. The lower medical costs and less complicated medical process and procedure associated with traditional surrogacy may make this a preferable method for some intended parents. Carefully drafted, comprehensive legislation as to how those arrangements should be conducted would allow for the application of protections and safeguards. Such proposals should include, among other things, requirements for appropriate medical and psychological evaluation of the parties, independent legal representation for intended parents and the surrogate (and her spouse or partner), and a written agreement that is negotiated by the parties and their respective attorneys. That written contract should include, without limitation, terms addressing payments, including reimbursement of expenses, insurance coverage, waivers of parental rights and breach and remedy provisions.
Traditional and gestational surrogacy are very different in kind, both medically and legally. Traditional surrogacy remains legally risky, and while a number of states have enacted statutes or currently have case law permitting gestational surrogacy, traditional surrogacy has not been as amenable to regulation beyond the adoption statutes. While enabling laws would be helpful, it is unlikely that such regulation will be appearing in the foreseeable future.