Legal Conflicts

Straight off, I will say that I am NOT in favor of gestational surrogacy. My primary objection is separating babies from the mother who’s womb they developed in. There is definitely an in-utero bond. I probably do know more families with donor conceived children than most ordinary citizens do. I know of situations where a surrogate was used. One in which the intended mother was actively undergoing chemotherapy at the time her twins were born and who did die when the twins were about 2 years old. They are being raised by their genetic father who donated the sperm in that assisted reproduction effort. I also know of a couple of women who simply didn’t want to wait any longer to have children with no husband in sight. They used both egg and sperm donations. BOTH carried their own children and I know them as awesome moms. These children are all 18 years old now including my youngest son.

The situation that inspired today’s blog regards couples from other countries entering into surrogacy contracts with women here in the United States. In this particular case, the intended parents have refused to come and get their twins for over a year now (they were born in February 2021). The surrogate and her husband are on the birth certificates as the parents but lack any legal custody because the surrogacy contract supersedes any hospital created birth certificate. The woman has both TikTok and Instagram accounts but both are private (possibly due to the legal complications) but I really don’t need to see them myself. The Instagram has a cute profile photo of the twins.

The United States is a destination country for couples who find they have to undergo surrogacy abroad due to the laws in their own country. Surrogacy is allowed in the United States for international patients by law. Not all of the states here are equally “friendly.” The website on LINK> International Surrogacy notes “surrogacy arrangements are legal in the following territories: Nevada, California, Texas, Arkansas, Illinois, Virginia, Florida, New Hampshire, Delaware, New Jersey, Tennessee, and Utah.” The states that ban surrogacy arrangements include Arizona, Michigan, New York, Indiana, Kansas, Louisiana, and Nebraska cautioning that surrogacy is even considered a criminal offence in some of them.

In the USA, a birth order is the legal document used to assign parentage to a child. These can be either a post- or pre-birth order that establishes the parental rights for the intended parents. This is key when undergoing surrogacy in the USA. Pre-birth orders can be started in the fourth month of pregnancy, whereas post-birth orders are granted on day 3 or 5 following the birth. This choice is very pricey for the intended parents – $95,000 to $290,000 – due in part to the fact that the US healthcare system is run by private businesses.

So back to our “trapped” surrogate and her husband. In order to have legal custody, they will have to go to court. They would have to sue for custody because simply being on the birth certificate doesn’t circumvent the surrogate contract in place. A complication of course is that they are not genetically related to these children and had no intention of parenting them to begin with. This even though they have been effectively raising these two babies for about a year. The intended parents have “broken” their contract but that doesn’t simply negate it legally.

Being a legal parent on a birth certificate does not always mean you have legal custody of your children – if there is another entity involved (like surrogacy, Div of Human Services/Child Protective Services with foster care, adoption until it is finalized, guardianship). It really depends on the country and this is the reason so many contracts, legal fees and lawyers are involved with situations such as surrogacy. Every situation is extremely unique.

Exploitation

I’m reading this morning about the surrogacy baby factories in India in the current issue of Time magazine. I personally know of more than one family who has acquired their child using surrogacy. I’m not a fan. Learning about the in utero mother baby bond has done it for me. Separating the baby from its gestational mother creates trauma in the child.

Both India and Africa are hot beds in the trade of women’s bodies to create babies for their intended families. There is also surrogacy in the United States. Always it is a matter of poverty and money.

One poor woman writes – she went to the clinic to live out her pregnancy because she was worried that being pregnant while divorced would subject her to malicious rumors. “If I tell anyone, they think that I am going to give away my own child. They don’t understand that I am simply giving my womb on rent.” Still, as far as that baby in her womb is concerned – it IS her own child.

I do have sympathy and compassion for the poor women who turn to surrogacy as their only method of creating revenue. This is a difficult situation. Without a doubt, commercial surrogacy takes advantage of low income women. I do not believe that making only Altruistic Surrogacy legal is the answer as it does not address the poverty that drives woman to provide their wombs in service to prospective parents. It will likely only drive the practice underground. A 9 month long commitment is a huge demand on any woman’s life.

Legal protection is needed – for both the surrogates and the intended parents. There needs to be medical insurance for the surrogates and a minimum amount of compensation for the time they are devoting. Don’t get me wrong – I still do not favor surrogacy. However, I am being realistic about the financial circumstances that drive a woman to agree to this. Banning the procedure will not work any better than it has worked for banning alcohol or illicit drugs. One needs to look at the source of what is motivating the behavior – poverty and desperation.

Sital Kalantry is a clinical professor at Cornell Law School and has written extensively about surrogacy. She worries about the lack of informed consent and notes that many of the women are unable to read the contracts, which are written in English, and they sign them using a thumbprint. The clinic highlighted in the Time magazine article has a C-Section rate of 70%. It probably is safer for the fetus than a vaginal birth but it is definitely more convenient for the doctor (your blog author raises her hand that she has had 2 C-Sections – these were said to avoid transmission of the hepC virus she co-exists with). And it is more convenient for the intended parents because they know when to pick up their baby.

A ban on commercial surrogacy in India will only send the practice underground. The conditions for the surrogates will be worse and it will still be in effect unregulated. Underground the surrogates will have no protections whatsoever. An example is China – despite commercial surrogacy being banned there – it is estimated that more than 10,000 children a year are still being born through that process.

You can read the entire Time magazine article here – India’s Ban on Commercial Surrogacy.

Surrogacy Is A Separation

I have known of two cases of surrogacy directly. Both utilized donor eggs. One was a mother who was being treated for cancer. She did die when the twins were about 2 years old and the father, who was directly their genetic father, remarried. The other one is a family member. The wife takes a lot of drugs to manage her mental health issues. They had a lot of failures but did eventually succeed and the little boy is now 5 year old and I am happy for my brother in law that he could be a father.

I didn’t question the practice at all until I began to discover my own genetic roots (both of my parents were adopted). As part of that journey, I began to learn a lot of things about infant development. No matter how you spin it, babies are being separated from the woman they’ve shared a home with for 9 months. The woman whose body nurtured and cradled them. They know her scent, her heartbeat. That’s who they know. And they are born and handed to someone who smells different, some stranger they don’t know.

There have also been cases where a surrogate mother became so bonded with the infant in her womb that it took a court case to separate them and contracts between a couple and a surrogate are much more explicit now about what is being done and for whom.

It hasn’t been all that long since The Handmaid’s Tale was making current news and the forcing of women to complete a pregnancy they don’t want for the purpose of handing their baby over to a prospective adoptive couple, often with undertones of evangelical Christianity seeking to convert the world to their philosophies, is very real even now.

One woman commenting on this situation admitted, “I seriously considered being a gestational carrier (their baby in my body, not my biological child) and when I learned about adoption trauma I knew I could never do it. How awful to take a baby from their only life connection. It’s cruel. It only serves to gratify the adults’ needs.”