With every passing year, commercial surrogacy in the United States grows by leaps and bounds. Because the media operate as the public relations arm of the fertility industry, the reality of surrogacy is ignored.
Media portrayals of surrogacy feature beaming parents and adorable babies, hiding the blatant class exploitation and profiteering, the commodification of women and children, and the serious, even life-threatening health risks to women who sell their eggs or rent their bodies as surrogates. The New York Times, for example, published a marketing article on surrogacy and placed it in the Fashion & Style section of the paper, as if children were must-have accessories for narcissistic elites. Drawing on patriarchal stereotypes, surrogates are presented as selfless, giving women who exist only to be of service to others.
In reality, commercial surrogacy is a predatory, profit-driven industry that preys on marginalized women, creating a breeder class for the wealthy, be they heterosexual or homosexual. It subjects women to life-threatening health risks to produce custom-made children and children being intentionally severed from genetic and biological sources of identity—human rights be damned. In essence, it is the ultimate manifestation of the American neoliberal project of capitalist commodification of human life to create profit and fulfill the narcissistic desires of an entitled elite.
Who Are These “Breeders”?
Shamefully, the US surrogacy industry feeds on the use of so-called military wives as breeder stock. Depending on the area of the country, it is estimated that between 20 and 50 percent of surrogates in the United States are military wives. Since there is virtually no regulation of surrogacy in the United States, exact numbers are impossible to obtain. It is certain that any numbers that are proffered are much lower than the reality given the “Wild West” nature of surrogacy in this country. These women represent an ideal supply source for the industry.
They are low-income (between $16,000 and $30,000 per year) and proven breeding stock, as they tend to get married and have their own children at very young ages. The prospect of doubling their income by serving as surrogates is a powerful incentive. Most surrogates are paid between $20,000 and $25,000. They are easy recruits to the fertility industry because military culture indoctrinates recruits with a service mentality. While their husbands are serving their country abroad, they are told, they can “serve” at home. Perhaps the most enticing feature of military wives is that they are assumed to be celibate if their husbands are stationed overseas; surrogates are instructed not to have sexual intercourse for the duration of the process.
These women have few legal or regulatory protections, making them sitting ducks for exploitation and fraud. It is no coincidence that surrogacy brokers and clinics are concentrated in states such as Texas, California, and Florida where there are large military bases. As with ads for eggs in college newspapers on campuses, military publications such as Stars and Stripes and Army Times are filled with surrogacy broker ads. Because the military heavily recruits from working class and poor demographics, these people are especially vulnerable to being exploited for their reproductive capacities by profit-driven private enterprise. Most American citizens have no idea that taxpayer-funded Tricare health insurance, provided to members of the military, is being used to cover the pregnancy and childbirth costs of surrogate pregnancies for contracting buyers.
The Legal Status of Surrogacy
Surrogacy in the United States is governed at the state level; there are no national laws or regulations governing surrogacy or egg selling. The US fertility industry is a four-billion-dollar business modeled on the factory farming of animals in agribusiness—just substitute women for chickens and cows. A patchwork quilt of laws and regulations covers the fifty states, ranging from “anything goes” systems in California and Connecticut to legal bans in Michigan and New York. In the middle are states like Louisiana, which restricts surrogacy to married couples using their own gametes. Any surrogacy arrangements outside of this are subject to civil and criminal penalties.
It should be noted, however, that the various laws, regulations, and penalties on the books are often not enforced. Even in states where paid surrogacy is illegal, government agencies will usually recognize the buyers as the legal parents in post-birth orders. In same-sex surrogacies, most states list the buyers as Parent and Parent on the final birth certificate.
Surrogacy law, whether by statute or case law, has been moving inexorably toward legalization across the country. Ninety-two percent of all states allow surrogacy in some form. Only four states—Michigan, New Jersey, New York and Washington—and the District of Columbia ban it outright. However, legislation has already been proposed in New York, Washington, DC, and New Jersey to legalize commercial surrogacy. It is only a matter of time before such legislation passes.
In most states, surrogacy bills are written by profiteers such as surrogacy attorneys and brokers or gay legislators who have used surrogates to obtain children, as in New York and DC. In the states where surrogacy is permitted but there is neither a statute nor a ruling from the state’s highest court governing the process, the question of pre-birth orders is determined on a county-by-county and even on a judge-by-judge basis, greatly complicating the whole process.
State-level surrogacy laws and policies can be broken down into four basic categories from the most permissive to the least. The most permissive category includes the eight states in which surrogacy is legal, pre-birth orders are granted, and both Intended Parents and buyers are named on the birth certificate. The second category includes eleven states where surrogacy is allowed but with potential legal hurdles. The third category is the largest: twenty-seven states that allow surrogacy but with various legal complications, such as post-birth parentage orders or other post-birth legal procedures. The fourth category includes the four states plus DC where surrogacy is currently illegal or a birth certificate naming the buyers as parents is prohibited.
Some of the complexities include venue (the county where the child is born, where the buyers live, or where the surrogate lives), whether hearings are required to obtain a post-birth adoption order, whether step-parent adoptions are required, and whether states recognize surrogacies that took place in other states.
Collusion Between US Government and the Fertility Industry Internationally
Not only are most Americans unaware of the reality of surrogacy in the United States, they are completely ignorant of the collusion of their government with the fertility industry regarding surrogacy internationally. The US State Department has been holding meetings in Washington, DC, of interested stakeholders to discuss and strategize the creation of an international surrogacy enabling agreement. The meeting participants are overwhelmingly from the fertility industry and its supporters: surrogacy clinics, attorneys, brokers, ASRM (American Society for Reproductive Medicine—while technically it is an NGO advocacy organization, for all practical purposes it functions as the lobbying arm of the fertility industry), and sympathetic academics.
For example, at a meeting on February 9, 2016, the discussion was dominated by surrogacy attorney extraordinaire Steve Snyder of Minnesota and John Weltman, owner of Circle Surrogacy in Boston, a gay man who has used a surrogate. Tellingly, the two State Department employees who ran the meeting, Michael Coffee and Lisa Vogel, clearly knew the industry people and were on a first-name basis with them. A vocal non-US participant was Australia’s most prominent surrogacy attorney Stephen Page.
When a couple of the professors mentioned human rights and exploitation, I, a radical feminist, was the only meeting attendant who directly spoke out against surrogacy as pure class exploitation, endangerment of women’s health, a violation of women’s and children’s human rights, and the commodification of women and children.
The industry chorus sang in unison about American exceptionalism as applied to surrogacy: surrogacy functions wonderfully in the United States, they asserted; surrogates are not exploited here, they all have incomes between $40,000 and $100,000 (!), they are “counseled” (i.e., brainwashed into compliance), they have their own legal representation, and they are well-educated. In sum, the United States is a virtual heaven-on-earth for surrogates. Not only is this blatantly false, it is manipulative and contrary to an objective process of analysis: in the current parlance, “fake news.”
All of these industry stakeholders—attorneys/ABA (American Bar Association), brokers, clinics, and the ASRM—are profiteers who should not even have been consulted since they possess an inherent conflict of interest regarding surrogacy. In fact, the very same month the State Department meeting was held, the ABA adopted a resolution on the Hague Convention on private international law concerning children—including surrogacy—urging the State Department to exclude human rights considerations, to ignore the Hague Convention on the Protection of Children, to cease restricting and regulating, and to treat surrogacy solely on the basis of “intent-based parentage.” The resolution reflects an approach that protects the wealthy buyers and the industry that profits from them while ignoring the human rights, dignity, and well-being of the women being used as brood mares and the children commodified as products for sale.
As if there could be any doubt about whose interests the US government is serving, Lisa Vogel, the leader of the US delegation to the Hague Conference of Experts, blatantly asked the industry representatives who dominated the meeting how to make the case to other countries for an international surrogacy enabling agreement based on the US “exceptionalist” model of surrogacy in all its forms. The only disagreement expressed at the meeting concerned whether a treaty should be based on adoption law. The main priority of the industry and its US government partner is determining the best way to ensure enforceable contracts and establishing citizenship for the children in the buyers’ home country. In sum, it was like an industry convention with the US government there to serve its interests. A second similar meeting was held on September 13, 2016, with identical dynamics and results.
Unbeknownst to virtually the entire country, the fertility industry in collusion with the US government is steamrolling an international treaty legalizing and facilitating the creation of a global breeder class of marginalized women for the wealthy, gestating and giving birth to children as products for sale and commerce.
Why Aren’t Feminists Fighting Surrogacy?
Most American feminists are completely uninformed about the reality of the surrogacy industry. It is simply not an issue for them. Even when educated about it, many are, in contrast to their European counterparts, terrified of opposing surrogacy. European feminists have been working to ban surrogacy and holding anti-surrogacy conferences such as a recent one in Rome covered by The Atlantic. This uniquely American feminist fear has three principal causes.
First, the corporate media have very successfully portrayed opposition to surrogacy as only existing among right-wing Christians who also want to ban abortion. Any association with those opponents is considered toxic.
Second, most mainline feminist organizations in the United States have been co-opted by neoliberalism through a combination of funding and cultural conditioning. As with support for the gender identity movement and the prostituting of women and girls as “sex work”—the other side of the surrogacy coin—objectification of women and the erasure of their rights becomes acceptable in this ideological framework. What these neoliberal phenomena represent are the marriage of capitalist commodification and the cult of the self.
Third, many American feminists have internalized patriarchal misogyny and placed the desires of gay men over the interests of women. Since gay men overwhelmingly support surrogacy for their own selfish interests, it is seen as homophobic by many to oppose it. Such an accusation induces terror in many American feminists.
The only hope for stopping surrogacy is to form an international network of feminists and their allies who grasp the reality of exploitation at the heart of the surrogacy industry. To stop this juggernaut, we must build alliances between left and right, fighting to protect the human rights of at-risk women who are being targeted and endangered by those who would use their reproductive capabilities for their own profit.
Kathleen Sloan is a former member of the board of directors of the National Organization for Women (NOW), Executive Director of Connecticut NOW, a consultant on third-party reproduction issues, and co-author of the book Race and the Genetic Revolution: Science, Myth and Culture. She has a master’s degree in International Relations and has traveled the world advocating women’s rights, including at the UN Human Rights Council in Geneva and the UN Commission on the Status of Women in New York.