On April 1, the Louisiana House passed HB 187, a bill creating a judicial framework that makes gestational surrogacy enforceable. The debate over the bill in Louisiana is only one example of the legislative battles taking place across the United States over the issue of surrogacy. Since the controversial Baby M surrogacy case that gripped the nation in 1988, there has been a patchwork of state laws, which criminalize the practice in Michigan and Washington, D.C., for example, while leaving it unregulated in states including California, which has a booming reproductive-tourism enterprise.
This wide-ranging and often confusing mix of surrogacy legislation shows that our laws have failed to keep up with ever-advancing reproductive technologies and the ways we use them, increasingly, to form our families. The fallout from the dearth of serious reflection on the ethics and uses of these technologies has allowed for the explosion of a lucrative, unregulated fertility industry in the United States, leaving women and children unprotected. Laws that aim to legitimize the practice are driven by the powerful partnership that those who are desperate for children form with the doctors and lawyers eager to profit from this pursuit.
In June 2013, a bill intended to legalize commercial surrogacy within Louisiana was vetoed by Governor Bobby Jindal, who observed that “creating a state sanctioned regulatory structure for contracts pertaining to the birth of children has a profound impact on the traditional beginnings of the family and is an important topic worthy of heightened scrutiny and consensus.” In stronger terms, the ethics committee of the American Congress of Obstetricians and Gynecologists (ACOG) in 2008 recognized that “surrogacy arrangements often take place between parties with unequal power, education, and economic status.”
After the bill was reintroduced in the 2014 session, various political groups in Louisiana worked with lawmakers to introduce amendments that would address concerns about the commercialization of conception and add protections for the gestational mother and the intended child. Policy experts in Louisiana celebrated the amendments as a significant though incremental victory.
The American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technologies (SART) issued a joint statement opposing the amended bill as it came to the House floor, contending that it “contains a number of provisions that make clear the process of collaborative assisted reproduction is either misunderstood or the supporters of this bill are biased against certain family models.” The amended bill, which added provisions that removed financial incentives for surrogacy, gave sole medical decision-making authority to the gestational mother. Protest such as that expressed by ASRM and SART is witnessed when any state seeks to regulate the practice and further demonstrates the unwillingness of the fertility industry to acknowledge the problems associated with the practice — medical, psychological, and ethical risks and a lack of protection for women and children alike.
In their statement against the bill, ASRM and SART opposed use of the word “mother” to refer to surrogates; their preferred term was the dehumanizing term “carrier.” The introduction of “mother” was one of the most important changes to the bill, as it is important that surrogacy laws recognize the humanity of both the woman and the child, who in pro-surrogacy-industry bills is often treated as a product in a commercial transaction. As any woman who has experienced pregnancy can attest, the bond between her and her child is undeniable, a bond that begins in utero. Mother–child bonding is natural, and attempts by the industry to fragment or deny that reality go against decades of medical and scientific evidence.
A major study in the Journal of Child Psychology and Psychiatry (June 2013) looked at 30 surrogacy families and found that surrogate children, while not suffering from psychological disorders, had elevated levels of adjustment difficulties. Moreover, the lack of a “gestational connection” to the biological mother or father may increase the surrogate child’s risk of psychological trauma. States interested in pursuing surrogacy legislation would be wise to allow such knowledge to guide their lawmaking and encourage larger future studies.
In Minnesota, an effort is underway to prohibit the commercialization of surrogacy and to model legislation after Canadian law, which allows only for unpaid, altruistic surrogacy. Both New York State and the District of Columbia, where surrogacy contracts are unrecognized, are currently considering new laws that would allow women to be paid as gestational mothers. In both cases, lawmakers in same-sex relationships have sponsored the proposed legislation, which would expand the market for same-sex couples who want to have children.
At a recent New York State forum on surrogacy, Melissa Brisman, a prominent surrogacy attorney, used the occasion to promote the benefits that she thinks surrogacy would bring to the state. Even if Brisman is correct, is this really the mechanism we want to encourage to promote economic growth? There is little that distinguishes surrogacy from the buying and selling of children.
In 1998, when the New York State Department of Health took up the issue of surrogacy after seeing the fallout from the Baby M case in neighboring New Jersey, its task force reported that “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.” Nothing about the ethical or medical facts of surrogacy has changed since then — only the politics surrounding it.
The current political landscape surrounding surrogacy indicates that as a nation we have failed to reconcile the undeniable realities of both motherhood and childbirth with our laws surrounding how these technologies enable collaborative reproduction and the building of modern families. Those who argue that this reflects merely a misunderstanding of surrogacy and a bias in favor of certain family models have yet to account for the medical and moral consequences of paying women to gestate babies for others. Until we have a serious public debate over commercial surrogacy, women and children remain exposed to exploitation at the hands of those entrusted with their protection.
— Jennifer Lahl is the president of the Center for Bioethics and Culture and producer/director of the surrogacy documentary Breeders: A Subclass of Women? Christopher White is the director of education and programs at the Center for Bioethics and Culture and a 2013–2014 Robert Novak Fellow.