The Debate Around Surrogacy Contracts

It’s an old question sparked by a new debate.  In Louisiana, the State Legislature recently passed a bill setting up the legal framework to legalize surrogacy contracts for married, heterosexual couples.  The bill, as amended, specifically prohibits gay or unmarried couples from entering into surrogacy contracts in the state.  Currently, in the United States, state, not federal, law governs most reproduction and fertility-related questions.  Each state has taken its own approach to scientific advances in baby-making, as well as the increasing interest in surrogacy and non-traditional parenting options.  At the outset, there are two types of surrogacies: traditional surrogacy is where the birth mother is also the child’s genetic mother; gestational surrogacy involves a surrogate being implanted with an embryo that was not made with her egg.  Several states, including Maryland and Colorado, are considered surrogacy friendly, while other states, such as the District of Columbia, strictly prohibit surrogacy contracts.  The recent Louisiana legislation and increasing media coverage has caused surrogacy to resurface as a hotly debated issue.  This past week, The Washington Post published an op-ed article and letter to the editor illustrating the diametrically opposed positions on the topic of surrogacy.

In her article “Wombs for Rent,” Kathleen Parker, Opinion Writer for the Post, refers to surrogacy as “the exploitation and commodification of women and the violation of human rights.”  She argues that there is a “dark underbelly” to the surrogacy industry wherein vulnerable women become vessels to grow babies for money, thus complicating the traditional family structure by nurturing a stranger’s baby in their wombs.  Parker contemplates the confusion of a child who has multiple parents, such as a sperm donor, egg donor, and surrogate, and the repercussions of an unconventional arrangement that, Parker believes, is largely driven by financial incentives.  Surrogacy, she argues, is a commodification of women’s bodies, an injustice that feminists and pro-life advocates alike can rally behind.

On May 29, 2013, Judith Sperling-Newton, Director of the American Academy of Assisted Reproductive Technology Attorneys (“AAARTA”), responded to Parker’s op-ed in a published letter to the Post’s editor.  Sperling-Newton calls Parker’s arguments “paternalistic assumptions” that a woman is unable to make decisions for herself and for her body.  Women who desire to be surrogates, she argues, are not poor and helpless, but rather “the vast majority of women who choose to serve as surrogates are intelligent, well-educated and financially secure; they are caring individuals who want to help others in a unique and meaningful way.”  Sperling-Newton believes that there should be increased regulations surrounding surrogacy and surrogates so that women can choose to help those who cannot carry babies themselves, and that women facing reproductive challenges can have the legal right to that option.

The law has not caught up to assisted reproductive technology (“ART”) that allows many individuals to become parents who previously could not.  While the law is evolving, parties entering into surrogacy arrangements are better off with a contract than without anything.  In the July/August 2012 issue of Washington Lawyer magazine, Zamani & Scott was quoted discussing the importance of a detailed surrogacy contract that carefully memorializes the parties’ intent in entering into a surrogate contract.  Since the laws regulating surrogacy are so new in some states, attorneys must be careful in drawing up detailed contracts that outline every component of the agreement and terms. One potential ethical issue is the compensation of the gestational carrier. In the article, Sara reiterated the importance of clarifying this aspect in the surrogacy agreement: “With respect to compensating a gestational carrier, the contract should indicate that the compensation is for the inconvenience of being pregnant.”  To see the full Washington Lawyer article, please visit http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/august_2012/fertility.cfm.

 

Read Kathleen Parker’s Op-Ed:

http://www.washingtonpost.com/opinions/kathleen-parker-the-exploitation-of-surrogate-mothers/2013/05/24/90bc159e-c4b0-11e2-8c3b-0b5e9247e8ca_story.html

 

Read Judith Sperling-Newton’s Letter to the Editor:

http://www.washingtonpost.com/opinions/surrogacy-should-be-regulated-not-banned/2013/05/29/2198c134-c7db-11e2-9cd9-3b9a22a4000a_story.html