The surrogacy industry in the United States is booming and so are its controversies.
Surrogacy is the process of a woman or person carrying a child for a couple or an individual who can’t conceive on their own. And it is by no means anything new. The first widely publicized case of surrogacy in the United States dates back to 1976 when Noel Keane, a lawyer, negotiated and drafted the first legal surrogacy agreement, according to Worldwide Surrogacy. Altruistic surrogacy was the main form of surrogacy back then and involves someone voluntarily carrying a pregnancy to term without being compensated monetarily for the process. The method of surrogacy was termed traditional, or partial surrogacy, where the surrogates would often use their own genetic material to help conceive the child, as a part of the agreement. Ethical dilemmas of this method arose in the famous 1986 case of Baby M., where a woman agreed to be a surrogate but later decided she would not give the baby to the intended parents. While she tried to keep the child, the court ultimately granted custody to the intended father, who is also the child’s biological father.
Soon, technological advancements such as in vitro fertilization (IVF) and gestational surrogacy, where a surrogate carries a child genetically unrelated to her, in the 1980s streamlined the process and mitigated parts of the ethical concerns presented within traditional surrogacy, according to BBC. With these advances and changes in cultural attitudes toward child-bearing, the commercialization of surrogacy in the US has been on the rise ever since. This means that surrogates, who are selected based on physical and financial criteria, are becoming part of a thriving business and are often being compensated monetarily. Surrogacy fees in the United States range from $120,000-$200,000 depending on the state, according to PBS. From the overall fee, the surrogates personally receive 25k to 50k above any medical costs. At the same time, while surrogacies may be unusual 40 years ago, today, the surrogacy service has become accessible to many individuals and push the societal boundaries for what constitutes a family. It has allowed those who suffer from infertility or disabilities, single individuals, and members of the LGBTQ community to build a family. According to Georgetown Law, whereas only 738 births were via a surrogate in 2004, the numbers saw an over 100% increase in 2015, with 2,807 children born via surrogacy.
Ok, so it sounds like surrogacy presents numerous benefits and is now widespread in the US, what makes it controversial?
First, there are no federal laws governing surrogacy, and the rules vary greatly from state to state, riddled with grey areas and complicated webs. For instance, surrogacy is permitted in Virginia but is dependent on certain factors or venues. It only permits altruistic surrogacy and has a residency requirement. Surrogacy is permitted for all parents in California. They also permit intended parents to receive pre-birth parentage orders (legal parentage status before the birth of the child but no actual legal effect until the child’s birth). Thus, it is no surprise that California is a popular state for surrogacy services. On the other hand, commercial surrogacy is illegal in most cases in Louisiana. Furthermore, as many states’ policies and legislations do not clearly address surrogacy (Pennsylvania is one of them), variation and violation among practices can be prevalent.
Critics have said that the desire of those wanting children of their own and the equally important rights of the children and the surrogate mothers should be weighed carefully. Dilemmas involved include children born via surrogacy becoming stateless (meaning that a child may be considered less desirable due to disabilities and intended parents trying to shred their responsibilities, or even pressuring for abortions), the right of a child to know their ancestry, biological parentage, and hereditary history, and the ethical implications regarding commercial surrogacy as a potential form of child trafficking or commodification. In extreme cases, an Australian couple who sought twin gestational surrogacy was reported to have abandoned one of the twins who was born with Down’s syndrome and only took the non-disabled child home in 2016. Situations like these may leave commercial surrogates facing unexpected maternal responsibility for children they had intended to give up, which runs contrary to the moral proposition that surrogate mothers are not “mothers” in any sense, according to BMJ. Whereas jurisdictions in some states disallow the enforcement of surrogacy contracts, meaning that a surrogate may keep as the child she gestates or transfer the parentage via adoption, other jurisdictions only recognize intended individual/couples as the parent(s) of a child by allowing enforceable surrogacy contract. In the second case, the surrogate has no right to change her mind and keep the baby after its birth, bringing up the ethical dilemma of treating women/surrogates simply as reproductive vessels.
Thus, the issue of surrogate exploitation is another major point emphasized by the critics. Surrogates, especially those from disadvantaged backgrounds can be subject to trafficking and exploitation by surrogacy agencies. Concurrently, as surrogacy is an expensive process, most people seeking commercial surrogacy are wealthy and of high educational or social status. The power imbalance between the contracting parents may take advantage of the surrogates’ vulnerability and consent.
It is clear that allowing individual states to dictate their own policies toward surrogacy is ineffective. The lack of legal consensus or standards complicates the use of Assisted Reproductive Technology (ART), including surrogacy, thus the United States should adopt uniform legislation in all states. A research paper from Trinity College has indicated that the ABA Model Act has been providing comprehensive guidelines regarding the management and enforcement of surrogacy; however, it has only been recommended for individual states to consider and not implement. Specifically, the “Administrative Model” outlined in Alternative B of this act is thought to ensure all parties are able to give informed consent by providing eligibility requirements, mandating mental health consultations, requiring independent legal counsel, establishing clarity in the dispute over parentage, procedure, compensation, and non-compliance. Thus, the implementation of this model may be a good starting point. Though it is notable to say that while US surrogacy services are skyrocketing, many countries in Europe, India, and Thailand have implemented strict regulations to complete bans after seeing widespread ethical and societal issues with the surge of surrogacy commercialization.
Reference
-https://www.worldwidesurrogacy.org/blog/the-history-of-surrogacy-a-legal-timeline
-https://www.law.georgetown.edu/gender-journal/wp-content/uploads/sites/20/2019/11/Alicia_Surrogacy-6.pdf
-https://www.bbc.com/news/health-47826356
-https://www.pbs.org/independentlens/blog/surrogacy-facts-and-myths-how-much-do-you-know/
-https://www.creativefamilyconnections.com/us-surrogacy-law-map/
-https://jme.bmj.com/content/44/8/551.long
-https://digitalrepository.trincoll.edu/cgi/viewcontent.cgi?article=1585&context=theses
-https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3531011/
I think that surrogacy is a complex issue that is becoming increasingly important as the amount of surrogacies are increasing exponentially. I think you brought up some really great points regarding the morality of surrogacy, including rights of surrogate mothers and biological parents. I think that the inequality of power between the surrogate mother and biological parents due to financial situations is also an important issue you addressed. Personally, I believe there should be a nationwide law that protects both biological parents and surrogate mothers. However, I think it will be a very long time before the federal government actually does anything about this issue.
I think this is a very important topic that needs to be talked about more. I like how you brought up all the different concerns for all people involved in the process including the “want-to-be” parents, the surrogate mother, and the child. I think you could potentially use this for your issue brief as it definitely has problems that relate to many people and can be considered to cause harm to certain individuals if not done properly. I think mandates could be a good way to approach this issue along with many other changes.
This topic was fascinating. I, personally, had a vague understanding of surrogacy and never thought too much on the negative impacts it has to potential to cause so thank you for enlightening me. I think that the complexity of this topic would give you a lot to talk about in an issue brief. The multiple perspectives of the potential mother, surrogate, and child are all a grey area with human rights and I think you have already shown that you can map out the right course of action.