10 Mar 2020 Worried Surrogacy Is Exploitative? Try Talking to A Surrogate!
As sometimes happens, I had one of those days recently during which events seemed to highlight for me some of the most critical issues in the field of assisted reproductive technology (ART) law today.
I traveled out of state a few days ago for a series of client and professional meetings. The first part of my extraordinary day took me to a hospital, where I had the opportunity to view the newborn nursery. It is unusual for my work to take me to a hospital, and it had been several years since I had encountered that sight: rows of tiny, bundled babies, swaddled and shielded behind protective glass windows. It was a moving reminder of why we do the work we do. It took me back more than a decade, to the birth of my and Tommy’s twin sons, now 11, who were created via egg donation and surrogacy—a life-changing experience both personally and professionally. That miraculous experience of becoming a dad via ART motivated me to establish my firm, International Fertility Law Group, which specializes in fertility law.
In my second meeting of the day I met with a surrogate, who was undergoing her second pregnancy as a surrogate. A mother of two, she told me that her pregnancies had been so easy and her children such a source of joy that she decided to become a surrogate to help others experience that joy. As we talked about the upcoming delivery, I was struck by how caring she was, by the genuine happiness she felt for the parents.
Later the same day, I met with three local family law attorneys—two with whom I had worked before. During the course of our meeting, the conversation meandered onto legal issues related to same-sex intended parents and adoption. One of my colleagues, who practices in a “red” state, told us about a client who wanted to surrender her child for adoption and felt strongly that she wanted the child to be adopted by a same-sex couple. The woman was told by the adoption agency that their policy was to never place children with LGBT couples. The birth mother asked the adoption agency whether, if she would otherwise choose to terminate the pregnancy, that would change their minds… and she was told, “No, go ahead and abort.” The absurdity of that response (to abort rather than place the child with a gay couple) is among the many reasons I am also so very personally invested and passionate about helping LGBT individuals build their families. Building a family through adoption or assisted reproduction is never an accident… these families are created with so much love and purpose.
Fortunately, the birth mother in this case was able to arrange for a same-sex couple to adopt her child—but she had to go to another state to do so. Today, seven years after her baby was adopted, the child is thriving in a loving home.
Later, reflecting on the day, I could not help but think of the recently organized opposition to efforts to overturn New York state’s 30-year-old surrogacy ban.
With the support of Governor Andrew Cuomo, in 2019 legislation was on track to establish a groundbreaking Surrogate Bill of Rights, allow legal enforcement of tightly regulated surrogacy agreements and streamline the onerous “second-parent adoption” procedure required of non-biological intended parents, among other measures. As we reported, on February 27, 2019, the New York State Assembly Judiciary Committee approved The Child Parent Security Act. With both houses of the state legislature in the hands of Democrats, proponents were confident it would become law. But before the bill made it to a vote of the full House, it hit an unexpected roadblock from the Left. Feminist activists, including Gloria Steinem, and left-wing legislators—traditionally our allies in the movement for reproductive rights—came out against the bill, citing concerns about potential exploitation of surrogates and “selling” of babies conceived and born using ART. (Read our report here.)
The unexpected opposition derailed the bill in 2019; however, Cuomo has promised to continue pushing for its passage in 2020. Adding to the challenges, a rival bill, introduced in mid-February by State Senator Liz Krueger, has confused the situation further.
As I thought back to my discussion with that caring surrogate that day, I remembered my and Tommy’s experience of working with our egg donor and surrogate through multiple cycles, the disappointing failed attempts at in vitro fertilization, the excitement when we finally got pregnant, and the joy and wonder my husband I shared at the boys’ birth. Children who are born via ART are so purposefully wanted, so painstakingly protected and cared for through pregnancy and birth, and so cherished and welcomed into their new families. I thought about the surrogate’s empathy for the parents whose dreams she was helping to fulfill. It made me wonder: Have any of those activists so opposed to surrogacy ever actually spoken to a surrogate? Far from feeling exploited, she was thrilled at the opportunity to help create new life and to offer others the gift of parenthood that she had been so fortunate to receive.
All humans are prone to make judgments based on our own life experiences and fields of expertise—all too often without thinking through the impacts upon those coming from a completely different place. Protecting low-income or otherwise vulnerable women from exploitation is essential and the right thing to do; the most effective way to do it is to enact strong laws and implement best practices to carefully screen and legally protect potential surrogates and intended parents alike, as is done in the United States. Prohibiting surrogacy in an attempt to protect one group of women from exploitation also limits the choices of women who are infertile, LGBT intended parents and would-be surrogates and encourages bad actors to operate underground. As lawmakers and advocates work to develop sensible regulations and safeguards for this rapidly evolving industry, I encourage any of them seeking clarity to talk to a surrogate!
