Surrogacy: Legal Issues

What's Wrong With Surrogacy?

Actress Sherri Shepherd, former television cohost of 'The View,' and her husband, Lamar Sally, wanted to have a child together. The couple decided to go the route of surrogacy with her husband's sperm and a donor egg since Shepherd was older and unable to have a child. However, a couple months into the surrogate's pregnancy, the couple decided to divorce.

After the split, Shepherd decided that she did not want the child and refused to put her name on the child's birth certificate or pay child support. After the baby boy was born, the surrogate's name was put on the birth certificate. The surrogate was then held liable to provide child support and faced financial ruin. The situation was eventually resolved in the courts with Shepherd finally listed as the mother and paying child support.

The story of Sherri Shepherd might seem extreme, but scenarios like this happen. The world of surrogacy is full of legal and ethical issues that attorneys, couples, doctors, and surrogates all have to navigate at the expense of a child.

Legal Realities

There are three different ways that a surrogacy is usually arranged:

  • A family member or friend can volunteer
  • A surrogate can be arranged through an agency
  • Surrogates can advertise their services on websites

In the United States, surrogacy law varies from state to state. Generally, states favorable to surrogacy are a mix of conservative and liberal states. As of April, 2018,

  • States where surrogacy or aspects of surrogacy are legal: CA, DE, DC, FL, IL, LA, ME, NV, NH, NJ, ND, TN, TX, UT, VA, WA
  • States where there are few or no laws regarding surrogacy: AL, AK, AR, CO, CT, GA, HI, ID, IA, KS, KY, MD, MA, MN, MS, MO, MT, NM, NC, OH, OK, OR, PA, RI, SC, SD, VT, WV, WI, WY
  • States where surrogacy is mostly illegal: AZ, IN, MI, NE, NY

For many around the world seeking surrogacy, the United States is the ideal place because of the legal protections couples receive as the intended parents and the superior medical care available. In many industrialized, first-world countries, surrogacy remains either illegal or restricted to altruistic surrogacy. For example, most of Western Europe severely restricts surrogacy or bans the practice all together. As a result of the legalization of surrogacy in certain states, the U.S. has become a reproductive tourist destination. Families from China, United Kingdom, Spain and other countries come to the U.S. to contract with American women to have their children. As a result these children also receive U.S. citizenship.

Two countries that previously allowed reproductive tourism and now prohibit it are Thailand and India. Both countries halted the practice out of concern for the exploitation of its women and children. The case that ended surrogacy in Thailand is the shocking situation over "Baby Gammy." An Australian couple contracted with a Thai woman to have their child and she became pregnant with twins. After the twins were born, the couple took one child home and left the child with Down syndrome with the Thai birth mother. When the surrogate wanted to fight for custody of both children, she discovered that the intended father was a convicted sex offender. An Australian court later determined that the child taken to Australia could stay with the couple, but the girl could never be left alone with her father because she would be at risk of sexual abuse.

What happens when things go wrong?

In most cases, the surrogate, either traditional or gestational, agrees to give up custody of the child after birth. However, in the span of a pregnancy many things can change. Couples can break up, the relationship between the surrogate and the intended parents can deteriorate, or a child could be diagnosed with special needs and there is conflict over whether to abort.

Due to the nature of fertility treatments, surrogates or even biological mothers who undergo IVF treatments are more likely to have a pregnancy with multiple embryos. Twins and triplets are more common after fertility treatments, and quadruplets, quintuplets, sextuplets, septuplets, and octuplets are all possible in extreme cases. If that happens, a surrogate could be asked to do what's called "selective reduction" and abort one or more of the children.

Normally, cases of selective reduction should be agreed to in the surrogacy contract – but that doesn't always happen. Legally, the situation is challenging since the intended parents are asking a woman to do something that might violate her conscience, always violates her body and kills an innocent child. Generally the surrogate has some control over this decision but she could potentially face legal and financial repercussions if she and the intended parent(s) disagree. Sometimes the surrogate and prospective parent end up in court over this issue.

Multiple births are an additional health risk to the mother, and to the babies. A mother has an increased risk of gestational diabetes, hypertension, and pre-eclampsia, and the babies are more likely to have a preterm delivery that requires them to have additional medical care after birth. Because surrogacy is mainly a legal and financial transaction, the intended parents are liable for medical payments and care of the mother and child. The additional medical and financial burden of multiples or a child with health problems is not a risk some intended parents are willing to take, and they put the burden on the surrogate to have an abortion.

Besides selective abortion, surrogate mothers also have to determine if they would agree to an abortion if the child is diagnosed with special needs or a severe disability, and the intended parents want the baby to be aborted. The abortion rate for preborn children with Down syndrome in the United States is between 67-90 percent. Since the child is the product of a business arrangement, the decision to abort may not carry the same severity as outside of surrogacy, especially for the intended parents who do not physically experience the abortion.

A Baby by Contract

Under most U.S. surrogacy contracts, women are paid for "pain and suffering" to avoid legal and ethical questions about renting a womb, paying for a child or baby selling. A woman receives her last payment once the baby/babies arrive, and may receive an "extra" financial payment if she happens to become pregnant with multiples. However, the opportunity for extra benefits doesn't stop there.

Depending on the contractual arrangements with surrogacy agencies, lawyers and intended parents, the surrogate can receive a variety of "extras" as she goes throughout the process. One agency's website lists additional covered expenses like a monthly allowance for doctors' appointments, $1,000 for maternity clothes and embryo transfer, and $500 for invasive procedures like "termination, reduction or a D&C." In fact, a surrogate is paid more money for bed rest while an embryo is transferred and maternity clothes than she does for an abortion or "selective reduction." She is also given a one year life insurance policy worth $250,000 in the event that the pregnancy ends in death.

Although many of these aspects may sound tempting if the woman is in need of cash, the reality is that every time a woman becomes pregnant there is a certain amount of risk. Some people have described surrogacy as akin to prostitution. In both situations, a woman is selling her body to be used for a specific purpose. Author Kajsa Ekman described it like this: "Surrogacy is built on a very old patriarchal notion of women, that our bodies exist for others and that we should be happy to sacrifice ourselves."

Most children born via surrogacy have not reached the age where they can share their thoughts about their conception, but in the 2010 study, My Daddy's Name is Donor, 45 percent of children born by sperm donation are bothered by the fact that they exist because money exchanged hands. In the film Breeders, a woman born through traditional surrogacy stated that sometimes she feels like a "product" since her birth mother was paid $10,000 to carry her to term and then give custody to others. It should be concerning that the value of a child's life and the body of a woman can be reduced to a legal contract that often involves money.