Last week, New Jersey Gov. Phil Murphy signed into law a new “gestational carrier” agreement act. For years, a contentious battle has been waged in the state that gave us the famous Mary Beth Whitehead, Baby M surrogacy case.
It was this national legal battle that gave us the few laws we have in the U.S. addressing surrogacy. That case, which played out in the news around the world in the late 1980s, was between William and Elizabeth Stern and Whitehead, who was hired for $10,000 to carry a baby for them.
After giving birth, however, Whitehead decided to keep the child. Ultimately, the New Jersey Supreme Court ruled surrogacy contracts invalid. On the heels of this case, those state legislatures that took action regarding surrogacy moved overwhelmingly against commercial contract pregnancies.
New Jersey now has a surrogacy law that has passed both houses of the state Legislature twice before, only to be vetoed by then-Gov. Chris Christie, who stated, “I take seriously the need to guard against any societal deprecation of the miracle of life.”
Murphy, however, took the side of the industry lobbyists and the “LGBTQ” community, a strong political base of his, and turned New Jersey into what I call a “surrogacy-friendly state.”
The U.S. is a patchwork of laws on the matter of surrogacy; for example, states like Louisiana and Texas permit commercial gestational surrogacy for married heterosexual couples, but the District of Columbia overturned their prohibition on surrogacy, making commercial gestational surrogacy legal for anyone.
By surrogacy-friendly I mean there are legal protections in place for the brokers and buyers of babies, assuring that those who enter into such contracts get the baby that they have “ordered.” Surrogate mothers and the children they bear are not and cannot be protected from the dangers and harms of surrogacy through legislation and contracts. How can contracts and laws protect the health and well-being of those exposed to the risks of these high-tech pregnancies?
Commissioning parents, by legal contract, can dictate literally anything and everything they want and expect of the surrogate they hire.
For example, the purchasers can contractually decide if and when the surrogate must terminate the pregnancy. Given the way the New Jersey law is written, neither the intended parents nor the surrogate mothers need to live in the state, which sets this state on track, like my state of California, to become a reproductive tourist state. As countries like India, Thailand, Nepal and Cambodia have closed their borders to international surrogacy, the market is shifting more to the U.S.
Birth certificates of children born in New Jersey do not have to reflect biological parents, only “intended” parents. Unlike adoption law in New Jersey, which gives adoptees the “right to obtain a copy of their original birth certificate (OBC) upon request to the New Jersey Registrar of Vital Statistics,” children born by surrogacy contracts drawn up in New Jersey have no legal right to know who their birth mother is, nor who their egg-donor mother or sperm-donor father are, if either were used in their conception.
A similar bill passed in Washington state in March. It was introduced as an update to the Evergreen State’s uniform parentage act. George Mason University law professor Helen Alvaré explains, in an excellent article May 22 for the Institute for Family Studies, how surrogacy is pushing the legal boundaries regarding who is a parent.
It wasn’t too long ago that maternal rights were simply assumed. By giving birth, a woman was the mother. And her husband didn’t have to adjudicate his paternal rights — they were assumed, since most babies were born to their biological parents.
But now, in the new “modern family” — created by third-party conception — egg donors and surrogate mothers have no maternal rights, and sperm donors have no paternal rights (or responsibilities). Washington’s Uniform Parentage Act dictates the ascription of parentage, with no regard for the biological facts.
A new legal battle is now being waged in New York state, where state Sen. Brad Hoylman, D-Manhattan, who has children with his male partner through surrogacy, hopes to legalize commercial surrogacy. Lost, apparently, are the clear warnings of the New York Task Force on Life and Law, convened after the 1988 Baby M case under then-Gov. Mario Cuomo in order to consider if surrogacy was against public policy. In its conclusion, it wrote:
“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.”
The legalization of commercially contracted gestational-surrogacy agreements is the latest American family landscape: modern baby-making markets. Surrogacy proponents continually claim that laws have not kept up with the progressive new assisted-reproductive technologies and the ways they can “help people build a family.”
But here’s the truth: Assisted reproduction is a relatively new technology, and data are slowly beginning to emerge on third-party conception and its effect on the bodies and psyches of women who serve as surrogates, and on the children who are created this way.
- The deaths of surrogate mothers have been confirmed. Brooke Brown, a young mother in Idaho, and the twins she was carrying for a couple from Spain — where surrogacy is illegal — all died one day away from a scheduled caesarian section due to pregnancy complications of placental abruption. Brown gave birth to eight babies — five via surrogacy — in her lifetime.
- Due to the high medical costs involved in surrogacy and the strong desire to boost success rates, multiple embryos are often transferred into women hired as surrogate mothers. In addition to the increased risk of caesarian sections and longer hospital stays, the British Journal of Medicine warns, “Multiple pregnancies are associated with maternal and perinatal complications such as gestational diabetes, fetal growth restriction and pre-eclampsia as well as premature birth.”
- Multiple studies have found that when surrogate births are compared to births of infants conceived naturally, multiple births increase, neonatal intensive care unit (NICU) admissions increase, and hospital stays are lengthened, all of which results in higher hospital costs.
- Even when only one embryo is transferred into the woman hired as a surrogate mother, embryos may naturally twin. This was the case for U.S.-based surrogate Brittney Rose Torres, who ended up carrying triplets for a U.S. couple.
- Studies show that surrogate mothers pregnant with donor eggs have a more than threefold risk of developing pregnancy-induced high blood pressure and pre-eclampsia because their bodies are “rejecting” foreign babies.
- The Loma Linda Medical Center in California compared natural pregnancies to surrogate pregnancies of a single or twin birth. They found hospital charges to be 26 times higher for surrogate births. When triplets or more were born, surrogate-related hospital charges were 173 times higher.
- Jessica Allen, a California surrogate for a couple in China, was pregnant with twins. She found out that she accidentally became pregnant with her own son — a rare occurrence called superfetation — while pregnant as a surrogate for the Chinese couple. It took her two months to get her own son back after the delivery.
And what about the children? Are “the kids all right” like the Hollywood movie wants us to believe?
- Children born via surrogacy are often low or very low birth weight, are at risk of pre-term and still birth, fetal anomalies, higher blood pressure and epigenetic problems like Beckwith-Wiedemann and Angelman syndrome.
- Surrogate pregnancies intentionally sever the natural maternal/child bonding that takes place during pregnancy. A June 2013 study released in the Journal of Child Psychology and Psychiatry found that “surrogacy children showed higher levels of adjustment difficulties at age 7,” and “the absence of a gestational connection to the mother may be more problematic.” The study also reported that the child’s difficulties “may have been underreported by intended mothers who may have wished to present their children in a positive light.”
States like Washington and New Jersey — and perhaps New York, if it goes the way of the rest of the other surrogacy-friendly states — just aren’t paying attention to the facts.
In their desire to “keep up” and be “progressive,” I suggest they keep up with the scientific evidence that is mounting against commercial contract pregnancy.
Jennifer Lahl is the founder and president of The Center for Bioethics and Culture.