In countries like India, Thailand and Nepal, authorities have become so alarmed by “womb-for-rent” scandals that they have cracked down on commercial surrogacy businesses. But in the U.S., state legislative efforts seem aimed at permitting the practice, not banning it.
Having someone else’s baby — often in exchange for tens of thousands of dollars — is growing into a major industry worldwide.
But, as one opposition group asks, “Is surrogacy a beautiful, loving act, or does it simply degrade pregnancy to a service and a baby to a product? Can we find a middle ground? Should we even look for one?”
Currently, New York and the District are among a handful of U.S. jurisdictions that ban commercial surrogacy, and lawmakers in both places are seeking to overturn the bans.
“Compared to the 50 states, District law is among the most restrictive with regard to surrogacy agreements, which is out of step with our commitment as a city to equality and family,” Ward 6 Councilmember Charles Allen said in January when the city council unanimously introduced the Collaborative Reproduction Amendment Act of 2015.
“I believe surrogacy should be an option for District residents who wish to have children,” Mr. Allen said, noting that the bill reflected input from pro-gay liberal groups such as the Human Rights Campaign, Family Equality Council and National Center for Lesbian Rights.
In New York state leaders are waiting to hear from a prominent task force, which might recommend that the state’s 1992 ban on commercial surrogacy be dropped.
New York lawmakers, like openly gay state Sen. Brad Hoylman — himself a father thanks to surrogacy — are ready to act, having already introduced bills to permit surrogacy agreements and commercial gestational carriers, as women are sometimes called.
In response, Jennifer Lahl, a nationally known opponent of surrogacy, has testified against the District bill and is also urging New York Gov. Andrew Cuomo not to undo his own father’s ban on commercial surrogacy.
The New York State Task Force on Life and the Law, established by late Gov. Mario Cuomo, issued a report in 1988 that said commercial gestational surrogacy “could not be distinguished from the sale of children and that it placed children at significant risk of harm,” Ms. Lahl, president of The Center for Bioethics and Culture Network (CBCN), wrote to the current governor in November.
“Our question to Gov. Andrew Cuomo is ‘What’s changed?’” she recently told The Washington Times.
“Nothing has changed: It’s still not in the best interests of women and children to enter into commercial surrogacy contract arrangements,” said Ms. Lahl, who contends she knows of two cases where women carrying triplets are fighting legal pressure to abort one of the fetuses.
Celebrities popularize surrogacy
The first surrogacy arrangement — where a woman uses her own eggs and artificial insemination to create a child for another person or couple — is credited to the late Noel Keane, a lawyer who drew up a birth contract in 1976 between a woman and a married couple.
Mr. Keane’s son, Chris, said in a 1997 New York Times obituary that his father believed he eventually helped arrange the births of 600 children through his Infertility Centers.
The first birth with a “gestational” surrogacy — a woman who is paid to carry a child with no genetic connection to her — occurred in 1986, according to an article in People magazine.
In that case, the Detroit housewife who agreed to be a “human incubator” for an infertile couple did so out of a heart of compassion — and $10,000, said the May 4, 1987, article. It also described the baby girl who was born as “a miracle” to her biological parents, a “marvel” to science and “a cute, plump, brown-eyed hot potato” to ethics professors and lawyers.
For a while the issue was defined in the public eye by the ugly custody battle over “Baby M” in the 1980s — in which Mary Beth Whitehead, the biological mother and gestational carrier, backed off a commercial surrogacy deal with a married couple.
A New Jersey court ruled the surrogacy contract invalid and upheld Ms. Whitehead’s maternal status and ordered her and William Stern, the baby’s father, to settle parental rights issues traditionally. Mr. Stern received primary custody, with Ms. Whitehead having visitation rights, similar to many other shared-custody arrangements.
But over time, celebrity couples like Nicole Kidman and Keith Urban, Sarah Jessica Parker and Matthew Broderick, Elton John and David Furnish, and Neil Patrick Harris and David Burtka raised the profile of successful commercial surrogacy services.
Many observers also believe the Supreme Court’s June ruling in Obergefell v. Hodges, which made gay marriage a national right, will fuel the paid-surrogate mother industry.
Modern surrogacy services in the U.S. are not for the financially fainthearted, however: Having someone else carry the baby (or babies) costs $60,000 to $150,000 — or more — according to pro-surrogacy websites and media reports.
Part of those costs — between $20,000 to $50,000 — goes to the surrogates themselves as recompense for “services rendered.”
Surrogacy contracts can also include hundreds of dollars for maternity clothes, an additional $5,000 for carrying twins or triplets and even prorated recompense if there is a miscarriage.
U.S. states offer a patchwork of laws on surrogacy, but eight states permit it, according to online interactive maps at Creative Family Connections, a surrogacy agency and law firm in Chevy Chase, Maryland.
One of the eight states — Oregon — has already become “an international destination” for gestational surrogacy, The Oregonian reported this year, noting that intended parents had come from Israel, Argentina, China, Australia, France, Sweden, Ecuador, Canada, Germany and Egypt.
California is another big pro-surrogacy state — it even allows intended parents to establish legal parentage rights before the birth, thus skipping adoption proceedings, the Fertility Source Companies said.
Other “green light” surrogacy states are Connecticut, Delaware, Maine, New Hampshire, Nevada and Rhode Island, said Creative Family Connections.
Vermont seems to have joined that list: This summer, lawyer Kurt Hughes and Jessica Stumpf, who had been a surrogate mother, started the state’s first surrogacy business.
“We both love people. To talk with people about this as a family-building option is just amazing,” Mr. Hughes told the Burlington Free Press this summer as the Vermont Surrogacy Network was launched.
Most U.S. states are “yellow light” states, where surrogacy is practiced but risky, Creative Family Connections said on its website.
At the other end, besides the District and New York, three states — Michigan, New Jersey and Washington — disallow commercial surrogacy.
In June, New Jersey Gov. Chris Christie again upheld his state’s ban by vetoing a second “gestational carrier” bill. He said he was not satisfied that lawmakers still hadn’t dealt with important questions about the practice.
In New York, an adviser to the New York State Task Force on Life and the Law told the New York Post in October that “gestational surrogate pregnancy contracts should be a viable option for potential parents.” The task force is guiding Mr. Cuomo about commercial surrogacy, Valerie Gutmann Koch added in the Post.
A request for comment about the task force from the New York State Department of Health was not immediately available this week.
However, in 1988 the panel issued a lengthy report on surrogate parenting, saying public policy should “discourage” it because it “places children at risk” and may undermine “the dignity of women, children and human reproduction by commercializing childbearing.”
Then-Gov. Cuomo signed a ban on paid surrogacy in 1992, with support from the National Organization for Women and the New York State Catholic Conference. The ban halted many such business, The Associated Press reported, citing a state health department report that said as much as 40 percent of the nation’s surrogate parenting deals were done in New York.
Mr. Hoylman and Assemblywoman Amy Paulin are both ready to jump on the surrogacy issue — their Child-Parent Security Act would codify commercial surrogacy and bring New York law up to date with “medical advances in assisted reproduction.”
But there will be opposition, said Stephen P. Hayford, legislative director for New Yorkers for Constitutional Freedoms.
“The task force was correct, and its analysis still holds,” he said, adding that his group and others that are “concerned with human dignity and the well-being of children” would be “fully prepared” for a legislative battle over the bills.
Bans in other countries
Meanwhile, authorities in India, Thailand and Nepal have recently curtailed or banned commercial surrogacy out of concerns for “surrogacy tourism” in their nations.
Recent scandals included businesses in India keeping pregnant women cloistered as if they were in “baby factories”; a wealthy Japanese man contracting for at least 16 surrogate pregnancies to create a large family for himself; and a heterosexual Australian couple taking home from Thailand a healthy twin but leaving the twin born with Down syndrome with the surrogate mother (the couple says their side of the story hasn’t been told correctly).
And in another Thailand case, a U.S.-Spanish gay couple is turning to courts in that country to fight their Thai surrogate for legal custody of a baby girl. The woman has decided to keep the child even though she is not genetically related to her, as Thai law appears to allow.
In several countries, bans on commercial surrogacy were aimed at foreigners; some countries will still permit their married citizens to use a surrogate under limited circumstances.
In the U.S. lawmakers and advocacy groups are eager to instill ethics and integrity into the surrogacy process.
In California, for instance, the law requires intended parents and surrogates to be represented by separate legal counsel and surrogacy contracts to be notarized.
An organization called the Society for Ethics in Egg Donation and Surrogacy (SEEDS) is working with assisted-reproduction technologies (ART) professionals to “create a unified voice” and “issue ethical standards” for ART.
“The need for surrogates in the U.S. is increasing as we are getting more people from out of country than ever before,” said Wendie Wilson-Miller, president of SEEDS.
“The U.S. is currently the safest place for a surrogacy to take place,” she said, noting that egg and sperm donations are regulated by the Food and Drug Administration, state laws can be clearer than those in other countries, and the industry is working hard to self-regulate and create better legislation.
The American Society for Reproductive Medicine’s ethics committee has already prepared numerous documents about third-party reproduction.
Two of the panel’s key points are that it is ethical to offer “reasonable, economic compensation” to a gestational carrier, and that people’s requests for ART services should not be denied on the basis of marital or partner status, sexual orientation or gender identity.
Another nonprofit, Men Having Babies, which recently held a workshop for prospective gay fathers in Manhattan, is also developing a framework for ethical surrogacy for intended parents.
“We believe the ultimate test for a non-exploitative surrogacy arrangement is the quality of the interaction between the parties, and the overall sense of accomplishment and gratification surrogates have during and after the journey,” Men Having Babies says in its statement of principles.
Ms. Lahl, a former pediatric nurse, says surrogacy invites coercion and exploitation — it degrades pregnancy to a service and a baby to a product.
Examples of U.S. problems include a jail sentence for a California “surrogate” who bilked people out of tens of thousands of dollars and the pregnancy-related death of an Idaho woman, herself a wife and mother, who was reportedly carrying twins for a Spanish couple.
Also, two California surrogates carrying triplets — one 18 weeks along and one 14 weeks along — are under “intense legal pressure” to terminate one of their fetuses. CBCN has set up an emergency fund to help these women “hold true to their convictions.”
“People still believe in the narrative, ‘What could be wrong with helping people have babies?’” said Ms. Lahl. “They don’t realize that there are high risks to both mother and child. So that’s why we are pushing back.”