On January 27, the Kansas State Senate Committee on Public Health and Welfare conducted hearings on proposed legislation that would make surrogate parent contracts void and unenforceable in the state. For those who enter into such arrangements, the offense would be punishable by up to $10,000 in fines and/or imprisonment in the county jail for not more than a year. The bill mirrors the current law in the District of Columbia. The law in Michigan is even stricter, with fines of up to $50,000 and jail time for those who break the law.
During his testimony, Dr. David Grainger, a fertility doctor who opposes the bill and practices in Wichita, Kansas, stated that, as he contemplated his testimony with “the bill in one hand and my Bible in the other,” he realized that this bill “would have criminalized the most important surrogacy pregnancy this world has ever seen: the verbal contract Mary had with God to carry and give birth to Jesus.”
Dr. Grainger was not alone in citing his religious views in support of surrogate pregnancy. Woman after woman testified to being pro-life, married to a devout Catholic, or serving on her church board, all attempting to build up a religious ethos in support of surrogacy. One surrogate stated, “It’s an honor to share my body.” Another described how, as a nineteen-year-old single mother who “wanted a better life” for herself and her child, she completed a total of four surrogate pregnancies; the supplemental income from surrogacy allowed her to go back to school. These women talked about “the blessings of surrogacy” and “the gifts of God,” about being able to bring children into their homes through surrogacy and how the surrogate women were “angels” giving “the greatest gift of life.”
In the end, only three of us testified in support of the bill. The bill has since died in committee. No vote was or will be called. A self-described pro-life Catholic senator told me in a sidebar conversation that he could not vote for the bill because it would be political suicide.
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Similar legislative battles are beginning to take place all across the country. Because of my expertise in assisted reproductive technologies, my background in pediatric nursing, and the documentary films my organization produces on these issues, I’m often called upon to testify. Despite changes in location, the legislative landscape seems to be consistently the same. The hearings often have moms with their babies in tow (curiously, I’ve yet to see an intended father testify). Last year in Louisiana, a state senator had photographs of his children, who were born via surrogacy, placed on the desks of his colleagues during the hearing. After all, who could possibly be against babies?
At these hearings you will often hear from the fertility industry: the doctors who have spent their careers helping people have children, the lobbyists representing RESOLVE and the American Society for Reproductive Medicine (ASRM), and, of course, the attorneys who draw up the contracts ostensibly to protect the involved parties. The intended parents are far and away the foremost concern in such contracts; there are few protections for the surrogates, and little to nothing that truly protects the children. Rarely will you hear from children produced through such arrangements, except for one courageous young woman who calls herself “a product of surrogacy.”
One difference I have noticed among states is the role LGBT advocates play. In New York state, which currently does not permit paying surrogates, advocates for gay rights are fighting to lift that ban. In the District of Columbia, where the Surrogacy Parenting Agreement Act of 2013 has been introduced by gay council member David Catania, gay men with surrogate-born children testified. In Louisiana and Kansas, by contrast, LGBT advocates played a considerably more “behind the scenes” role. A state senator in Kansas thanked Kansas Equality Coalition for finding witnesses, but notably Kansas Equality Coalition representatives themselves did not provide any testimony.
The more conservative a state is on the marriage debate, the more LGBT groups know to step back. The more liberal a state is on marriage, the more vocal these groups are in fighting not only for “marriage equality” but also “reproductive rights.” My state, California, now requires insurance providers to provide fertility benefits to same-sex couples. Of course, same-sex couples are not truly infertile; as a result of their relationship they simply do not have both sperm and eggs. Yet benefits are provided to them in a spirit of equality.
One question often posed to me is, “What would you say to a gay couple who knew the only way they could have a child was through surrogacy and egg donation?” My answer is: I’d say the same thing I say to a heterosexual couple who couldn’t have a child unless they used a donor egg and/or surrogate: “No.”
This question is usually an attempt to set me up. People think I have an ulterior motive at play; that our films and educational advocacy work constitute a Trojan horse, and that we really are just seeking to prohibit same-sex couples from having children. But I have been writing, speaking, testifying, and making films about reproductive technologies for more than a decade now, and I am more fully convinced than ever that none of us should embrace them. They are fraught with ethical, medical, and legal problems.
The principles of informed consent are abused when buying and selling eggs or renting wombs, and, by extension, literally buying and selling children. Without long-term studies on the health risks to young women who sell or donate their eggs or to women who undergo hormone injections as surrogates, an egg donor or surrogate cannot possibly be truly informed regarding the risks to which she is consenting. In addition, we know that money coerces a decision—which is why the entire history of organ donation in the United States has been built upon truly giving the gift of life. It is unethical to prey upon women of low income (I’ve never met a wealthy women selling her eggs or renting out her womb) to “help” someone else have a baby. When people are in financial need, they often make decisions that are not in their own best interest.
It is also unethical to create children who will be deliberately alienated from their biological families. Unlike adoption, which seeks to remedy an existing situation by finding others to care for children who cannot stay with their mothers or fathers, third-party reproduction intentionally separates children from kin, and boldly claims, “It doesn’t matter!” As Barry, a sperm-donor-conceived man, says in Anonymous Father’s Day:
People in the infertility industry, they like to sort of pretend that [biological ties are] on one hand incredibly important. You know, they’ll say . . . “Pick the donor very carefully!” And then, when you come back for a second child, “Would you like a child from the same donor so your siblings will be full siblings because the blood bond is so important?” And then on the other hand they say, “Forget about it. It’s just like a blood donation. It doesn’t mean anything.”
How many people, if they are told that they are sitting in an office across from somebody or they’re on a factory floor for the last ten years across from someone who is actually their brother, would say, “Oh yeah, so what . . .”? For most people, it’s meaningful information! And to pretend it isn’t goes against human culture, goes against human nature.”
IVF and many new assisted reproductive technologies are risky. There are real risks both to the women involved in and to the children born from these methods. The British Medical Journal’s February 2014 analysis asks, “Are we overusing IVF?” I find their comments on the health risks compelling and worth citing at length:
Extended use of IVF also increases the risk of harm. Multiple pregnancies are associated with maternal and perinatal complications such as gestational diabetes, fetal growth restriction, and pre-eclampsia as well as premature birth. And even singletons born through IVF have been shown to have worse outcomes than those conceived naturally. Although some countries have mitigated the risk of multiple births by requiring single embryo transfer, multiple transfer is still common in many parts of the world, including the United States and Asia, where multiple birth rates are 20% to 30%. Furthermore, studies suggest that single embryo transfer, which involves extended embryo culture and transfer of a blastocyst, is associated with a 50-70% additional risk of preterm birth and congenital malformations.
Concern has also been raised about the long term health of children born through IVF. Otherwise healthy children conceived by IVF may have higher blood pressure, adiposity, glucose levels, and more generalised vascular dysfunction than children conceived naturally. These effects seem to be related to the IVF procedure itself rather than to underlying subfertility. Animal studies have shown epigenetic and developmental abnormalities after assisted reproduction, which give further cause for reflection. Until these concerns are resolved, there should be caution about using IVF in couples when the benefit is uncertain or the chances of natural conception are still reasonable.
Now, the risks described above are not those of women who serve as egg providers or surrogates but those of infertile women. But as to the former, it is highly unethical to ask otherwise healthy young women to subject their bodies to such risks. There is also a decisive shift toward gestational surrogate pregnancies, which often requires two women: one to provide eggs and one to provide the womb. And please notice in the BMJ analysis the risks IVF procedures pose to children.
One doesn’t have to look long or hard to find a legal case on third-party conception gone bad. Back to Kansas: a case there is developing that concerns a child born to two lesbians who found a willing sperm donor on Craigslist to help them conceive. The new buzz phrase is “collaborative reproduction.” After the child was born, the lesbians separated. The woman who is the (biological and gestational) mother of the child kept him after the split, but when she fell on financial hard times she asked the state for financial assistance. The state, as we would expect, inquired about the child’s father. A judge has ruled that “the parties failed to perform to statutory requirement of the Kansas Parentage Act in not enlisting a licensed physician at some point in the artificial insemination process, and the parties’ self-designation of [the man] as a sperm donor is insufficient to relieve [the man] of parental right and responsibilities to the child.”
In a particularly complicated case involving surrogates who are pregnant in Thailand for gay couples in Israel, sixty-five children are in legal limbo because the Israeli Ministry does not recognize the children as citizens. In my latest film, Breeders: A Subclass of Women?, all but one of the women experienced legal custody battles. Of course, the most famous surrogacy battle in the United States was the Baby M case in 1986.
As New York state considers relaxing its surrogacy laws, it is important to reflect on the New York Task Force report issued in 1988 (after a full year of study and deliberation) on “Surrogate Parenting: Analysis and Recommendations for Public Policy.” That report states:
The Task Force unanimously recommended that public policy should prohibit commercial surrogate parenting. 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. The Task Force rejected the notion that rights as fundamental as the right of a parent to a relationship with his or her child should be bought and sold or waived irrevocably in advance of the child’s birth.
What, I ask you, has changed since this report was issued? Third-party contracts still undermine the dignity of women and children. There is still nothing that would distinguish this practice from the buying and selling of children. In fact, the biggest change is that we now know far more about the risks and medical harms to women and children, which underscores even more strongly the need to prohibit such arrangements. It is a grave mistake to loosen or weaken the laws around the use of surrogacy contracts.
I’m against third-party reproduction. Period. Full stop. Gay or straight, married, single, or divorced. The legislative battle on this front is just heating up, and the most unlikely of coalitions will need to begin working together to counteract the seemingly insatiable demand for a baby, at any cost.