ST. PAUL, Minn. — Opponents of commercial surrogacy in a number of states are preparing to withstand efforts to legalize the process before state legislative sessions end in the coming months.
Legislation to legally recognize and regulate surrogacy is active in the states of Louisiana, Minnesota and New York, as well as the District of Columbia. In two of those places, New York and D.C., surrogacy is currently prohibited, as it is in Michigan, where jail time and fines as high as $50,000 can be levied against offenders.
However, in most states, surrogacy, a practice the Catholic Church deems as “gravely immoral,” is unregulated.
“[The industry] has been kind of like the Wild West,” said Minnesota state Sen. Ron Latz, D-St. Louis Park, who is the co-author of a bill that will create legal regulations and safeguards for surrogacy if it passes both chambers of the Minnesota Legislature.
Commercial surrogacy advocates in Minnesota like Latz say the process already happens, “often without the benefit of a clear understanding on the part of everyone involved what their rights and obligations to each other are.”
“[This bill] will protect everyone,” added Latz, who represents residents of Minneapolis’ western suburbs.
Latz’s bill is far more robust than the House version, which is being presented by its proponents as a “technical bill” that would allow judges to cite surrogacy contracts when determining child-custody cases. Both bills have passed committee and could be brought to the floor for discussion and a vote at any time in their respective bodies, which are both controlled by Democrats.
The bills are different in scope from each other, but a conference committee could iron out the differences and send the bill to Gov. Mark Dayton’s desk if they are voted on before the legislative session ends on May 19.
Showdown in Minnesota
But the bills are facing significant opposition, most notably from the Catholic Church. The state’s Catholic conference of bishops has highlighted the Church’s teachings on procreation, human dignity and the rights of children, in addition to legal and health concerns, as grounds for killing not only the bigger Senate bill, but also the “technical” House measure, which has been characterized as a piecemeal approach for achieving state-sanctioned surrogacy.
Latz says he respects the ethical concerns of surrogacy opponents, but doesn’t believe they should inform how state statues on the matter are written. Instead, he thinks the matter should be left up to the individuals involved in surrogacy, who freely choose to participate in the process.
“If people go into it with their eyes open, that’s their decision to make,” he said, emphasizing that the choice to participate in commercial surrogacy is a private decision, one that legislators should respect.
However, Jason Adkins, the executive director of the Minnesota Catholic Conference, sharply disagrees with the notion that surrogacy is solely a private matter.
“Every decision we make has an impact on others,” said Adkins, who characterized the view that consent is the most important criteria of public policy as an instance of “sophomoric libertarianism.”
“Such a view of politics and society is wrong,” he said. “All of our decisions have to be made based on reason and whether it is ethical and serves the common good.”
The Catholic Church teaches that surrogacy “is contrary to the unity of marriage and to the dignity of the procreation of the human person. Surrogate motherhood represents an objective failure to meet the obligations of maternal love, of conjugal fidelity and of responsible motherhood; it offends the dignity and the right of the child to be conceived, carried in the womb, brought into the world and brought up by his own parents; it sets up, to the detriment of families, a division between the physical, psychological and moral elements which constitute those families” (Donum Vitae).
“Women should not be for rent, and children should not be for sale,” said Adkins.
Children: A Gift, Not a Right
Adkins emphasized that Catholics can’t “ignore the pain and struggle experienced by couples with infertility” — those who are the primary users of alternative forms of reproduction like commercial surrogacy. But he went on to say that the sadness of infertility doesn’t make every means of addressing infertility ethically sound.
“We have desire, and desires turn into wants, and wants turn into rights,” said Adkins, regarding people’s push to use alternative reproductive methods. “But children are gifts; there’s no right to a child.”
Adkins said the effort to legally recognize and regulate commercial surrogacy is nothing new in either Minnesota or the nation. As he pointed out, a previous legislative attempt was passed in 2008 before it was vetoed by then-Gov. Tim Pawlenty, and surrogacy has been discussed at the national level since the 1980s.
But according to Adkins, the current push is being primarily motivated by those with financial interest in commercial surrogacy, part of what he refers to as “the multibillion-dollar fertility industrial complex.”
“For their contracts to be honored, they need to have some sort of legislative or statutory legitimacy,” he said.
Steve Snyder is a Minnesota lawyer whose firm helps connect surrogates with “intended parents” and provides legal representation to the parties involved. Snyder, who has personally worked with nearly 300 women who have served as surrogates, says the people involved in surrogacy are primarily motivated by altruism, not greed.
“It’s a process full of love,” said Snyder, claiming that arrangements where the child and birth mother maintain a healthy relationship are “the norm.”
An ardent supporter of the pro-surrogacy legislation being considered by the Minnesota Legislature, Snyder disagreed with the critiques of many surrogacy opponents who emphasize the need for procreation to be unitive. “I will never be able to have a unity of concept” with those who “believe in the mystical nature of procreation” and oppose surrogacy on these grounds, he said.
Snyder also said allegations that separating a child from his or her birth mother can result in negative psychological consequences have no empirical evidence to back them up.
“I speak from actual experience,” Snyder said of his stance on surrogacy and his work with a number of surrogacy arrangements. “The people that oppose [surrogacy] speak about what ifs and maybes, and they, frankly, never talk to an actual surrogate, so they don’t actually have any support for their allegations.”
That may be true of some surrogacy opponents, but it certainly doesn’t describe Jennifer Lahl. Lahl, the founder and president of the non-sectarian Center for Bioethics and Culture, is one of the nation’s leading advocates against commercial surrogacy, and she has considerable experience working with women and children who say they were mentally, emotionally or physically hurt by commercial surrogacy.
Lahl presented the ugly underbelly of the surrogacy industry in a documentary entitled Breeders: A Subclass of Women?, which was released earlier this year. The project came after previous documentaries on the ethical concerns of the donation of egg and sperm, respectively, so covering this aspect of alternative reproduction — commercial surrogacy — was “absolutely necessary,” she said.
Lahl identifies three major ethical dilemmas surrounding commercial surrogacy: an interruption of mother-child bonding, a disruption in the family dynamics of surrogate mothers who already have children and the contractual aspect of commercializing conception.
Lahl, a former pediatric nurse with 25 years of medical practice, says the idea that women form a bond with their children during pregnancy is a universal, shared by “every woman on the planet, regardless of religious or political persuasion.”
But she says surrogacy supporters choose to ignore that. “[They] say, ‘She’s just a vessel; she’s just going to crank out this baby and give it away. The baby won’t mind.’” She added that a baby knows one thing at birth: “his or her mother.”
“So to say the baby won’t experience any harm is just nonsense.”
Lahl points to the 1993 book The Primal Wound by Nancy Verrier as a well-researched assessment of the negative psychological effects of removing children from their mothers at birth.
The Legislative Landscape
Lahl and her organization have been closely monitoring the legislative landscape regarding surrogacy in different states and are closely involved in efforts to not only prevent pro-surrogacy laws from passing, but to ban surrogacy outright.
Like the Minnesota Catholic Conference’s Adkins, Lahl says support for surrogacy legislation is a case of “follow the money” — she believes those with a financial stake in commercial surrogacy are its biggest backers — but she also identifies another factor.
“With the legalization of same-sex marriage, we’ve seen an influx of efforts to change or enact laws that will liberalize surrogacy,” she said, explaining how same-sex couples’ inability to procreate through natural means leads them to pursue alternative reproductive processes like surrogacy.
In fact, in Washington, the bill to remove the district’s ban and legally recognize surrogacy was introduced by a homosexual city councilman. And in New York, Lahl says the homosexual-rights lobby plays an overt role in the effort to reverse that state’s surrogacy prohibition.
But in more socially conservative states where surrogacy is gaining support, the push isn’t coming primarily from homosexual activists. Instead, many Christian groups, who are pro-life in regard to abortion, are actively backing pro-surrogacy legislation, as is the case in Louisiana.
And in Kansas, earlier in 2014, an effort Lahl was involved in seeking to prohibit surrogacy in that state was defeated, in large part due to the efforts of conservative mainline Protestant and evangelical Christian groups. Some even claimed the Virgin Mary was the “original surrogate” in public testimony and argued that the Bible’s extolment to “be fruitful and multiply” was justification for the practice.
“From my experience, we see way too many pro-life people who have embraced third-party reproduction” as a way to address infertility, said Lahl. She added that “poor theology” prevents people from making the connection between abortion and alternative reproductive methods, which often result in the destruction of human embryos during in vitro fertilization, a procedure usually necessary for a process like surrogacy.
While pro-life groups haven’t provided opponents of surrogacy with much support, both Lahl and Adkins recognized the strong backing given by a non-traditional ally: feminists. The bioethicist and policy expert specifically mentioned the contributions of Kathy Sloan, a member of the national board of the National Organization for Women, as particularly invaluable.
Sloan was a production assistant for Lahl’s film on the harms of commercial surrogacy and regularly travels the country to lobby both state legislators and her fellow feminists to oppose the practice, on the grounds that it commodifies women and exploits the poor and the marginalized.
As Lahl puts it, she doesn’t have “a crystal ball” to make predictions about how her efforts to stop pro-surrogacy legislation will fair this year, but she says she’s “cautiously optimistic.”
“We’ve had enough success in the past few legislative cycles,” she said. She also noted a letter Gov. Bobby Jindal issued when he vetoed a 2013 bill to legalize surrogacy in Louisiana, in which the Catholic governor wrote that surrogacy would “profound[ly] impact … the traditional beginnings of the family,” as proof that arguments against commercial surrogacy are starting to become more salient.
However, a similar bill is currently being considered by the Louisiana Legislature, and Jindal has not given any indication he would veto it if passed.
In Minnesota, with less than a month before the state legislative session closes, advocates for the regulation of surrogacy are clear that they want a bill passed now.
“I see no reason to delay this,” said Sen. Latz. “Any delay means that there will be more people subject to vagaries and possible abuses. If we can prevent these things, we should.”
But Lahl suggests a different approach to preventing the potential risks of surrogacy: prohibit the practice altogether.
“Making things illegal is sometimes good,” she said. “Commercial surrogacy has been illegal in Michigan and D.C. for a while, and the sky hasn’t fallen.”
Lahl says the key to opposing pro-surrogacy legislation is education, both on the acceptable use of prohibiting a practice, but also on the potential private and public risks associated with legalizing commercial surrogacy.
Jason Adkins is doing all he can in the build-up to a potential vote, urging Catholics to call their legislators and “share the fact that they don’t want Minnesota to become the epicenter of the surrogacy industry.”
He’s also working with legislators to explore the ethical dimensions of commercial surrogacy.
“Time to explore this issue is all we’re really asking for here,” he said. “My prediction is that when rational discussion on this issue prevails, we’ll join many other parts of the world in banning this practice.”
Register correspondent Jonathan Liedl writes from Minnesota.