LOS ANGELES — During a recent concert tour through Scandinavia, pop icon Adele invited a male couple up to the stage, where one of the men spontaneously proposed marriage to his partner.

The singer and her audience applauded their approval.

“Should I be your surrogate if you have children? I’d love to have a baby with someone Swedish,” Adele told the couple.

The megastar’s remarks zoomed through social media. And just as quickly, they prompted a cautionary note from Jennifer Lahl, an outspoken critic of surrogacy and the president of the California-based Center for Bioethics and Culture, which produced the film Breeders: A Subclass of Women?

“While we feel all warm and fuzzy about helping others, casting surrogacy in this light is rather dangerous. Countless women and children have been harmed,” wrote Lahl in an open letter to Adele, posted earlier this month.

From Thailand to California, surrogate mothers have signed contracts with intended parents, only to change their minds and seek custody of the children. In other cases, they have balked at demands that they undergo an abortion when tests point to a birth defect or the presence of two or more unborn babies.

In the latest high-profile surrogacy case in the United States, Melissa Cook, a California woman, filed suit in state and federal court, challenging a California law that denies parental rights to surrogate mothers with no biological ties to the child in question.

“This case will force a discussion about the child’s rights,” Harold Cassidy, Cook’s lawyer, told the Register.

Cook may not be the first surrogate mother to have second thoughts, but she faces an uphill battle to secure a legal victory.

“The U.S. is more hands-off on things like [surrogacy contracts],” Melissa Moschella, an assistant professor of philosophy at The Catholic University of America, told the Register.

The deep resistance to regulatory oversight, explained Moschella, who has studied the ethics of assisted reproduction, reflects American culture’s “very strong emphasis on sexual expression and sexual freedom.

“There is a huge antipathy to government involvement in anything that relates to marriage, sexuality and procreation.”

 

European Surrogacy Bans

In contrast, European countries like Sweden, France and Germany have banned surrogacy, amid reports of exploitive practices that target women in the developing world.

In February, women’s groups and human-rights activists gathered in Paris for the International Conference Against Surrogacy, calling on the European Union to prohibit the practice.

“All surrogacy is exploitation — the world should follow Sweden’s ban,” argued Kajsa Ekis Ekman, the feminist author of Being and Being Bought — Prostitution, Surrogacy and the Split Self, in a February 2016 column in Britain’s Guardian newspaper.

"The West has started outsourcing reproduction to poorer nations, just as we outsourced industrial production previously. It is shocking to see how quickly the U.N. Convention on the Rights of the Child can be completely ignored." 

Ekman and other opponents of commercial surrogacy have raised the alarm about the commodification of children and about the power imbalance between generally poor women who contract to carry children and the people who have the financial clout to secure these services.

In one recent case that sparked an international outcry and a crackdown on Thailand’s profitable surrogacy industry, an Australian couple paid a Thai woman to carry twins, but later reportedly abandoned the male twin, when he was diagnosed with Down syndrome.

Australia bars commercial surrogacy. However, Australian authorities have conferred citizenship on both children, even as the male infant with Down syndrome remains in Thailand, where he has received donated funds to pay for his medical needs.

Last year, questions about the ethics of international surrogacy also surfaced in the wake of Nepal’s devastating earthquake, when the news media breathlessly followed the Israeli government’s struggle to evacuate 26 infants born to surrogate mothers who had contracted with Israeli citizens.

At the time, some Israelis were disturbed that public attention centered on the smooth evacuation of the infants, while the safety of the women who had borne the children drew little concern.

“How can it be that none of the human-interest stories or compassion-filled posts mentioned these women, who came from a difficult socioeconomic background … to rent their wombs … who now, like the babies they’ve just had, are also stuck in the disaster zone?” asked writer Alon-Lee Green in a column in Israel’s Haaretz newspaper.

Nepal has emerged as a popular destination because it is among a shrinking number of countries that permit commercial surrogacy for same-sex couples, but also because the costs for the service are dramatically lower than they would be in the West.

Commercial surrogacy can cost “$150,000 in the U.S. and Canada, but only $30,000 in Nepal,” reported Time magazine.

 

California: International Surrogacy Destination

Yet the stark inequities and unintended consequences of surrogacy arrangements rarely draw the same scrutiny or outrage in the United States, especially in California, now an international destination for assisted reproduction.

Commercial surrogacy has received a mixed reception in the United States. Some states permit it, while New York, New Jersey, Washington and Michigan, as well as the District of Columbia, do not.

At present, surrogacy is largely unregulated in the Golden State, and celebrities such as Elton John have traveled here to contract with agencies that pair them with women, who are usually implanted with an embryo conceived with a donor’s eggs and often the sperm of the man who will take custody of the infant or infants. When the child is not biologically related to the surrogate mother, it is much easier for the intended parents to claim undisputed legal rights to the child.

Lisa Ikemoto, an authority on reproductive rights at the University of California at Davis School of Law, underscored the striking differences between regulations governing adoption and surrogacy arrangements. In the latter cases, the law does not require screening of intended parents or prospective surrogate mothers, and it leaves such matters to businesses that facilitate the process.

“Some states have regulations that largely enable [commercial] surrogacy,” Ikemoto told the Register.

She described California’s statute as “one of the most industry-friendly.”

“For people who are hoping to be parents, the most important part of the contract is that they will be recognized as legal parents, and the woman who gives birth will not,” Ikemoto noted.

“That means the intended parents don’t have to go through any adoption process when the child is born. The contract is enough.”

In 2012, the same year California’s industry-friendly law was passed, Theresa Erickson, a legal expert who once served as a board member of the American Fertility Association, was fined and sentenced to five months in prison for participating in a Ukraine-based ring that sold babies to couples seeking to adopt children. Erickson recruited prospective surrogate mothers, who carried the babies to term in Ukraine. Afterward, the infants were sold for at least $100,000 each.

 

Melissa Cook’s Case

Now, Melissa Cook, the surrogate mother in California, wants to challenge the 2012 law, and her own case reflects the problems associated with the state’s loosely regulated industry.

According to news reports, the agency that facilitated the contract did not effectively screen the male client to make sure he had sufficient resources to care for a child or children.

After medical costs mounted and the client learned Cook was carrying triplets, he pressed her to end the pregnancy or at least reduce the number of children she carried.

Nevertheless, once the triplets were delivered, they were given to the client, who is the biological father. Cook’s contact with the children was severed.

Harold Cassidy, Cook’s lawyer, has litigated similar cases around the country. But he is especially critical of the California law.

The law is a boon to California’s burgeoning assisted-reproduction industry, agreed Cassidy, but he said it poses an unconstitutional violation of the child’s rights.

“For a court to say that the rights of children to know and be loved by their mothers have been waived before they are in existence is a violation of due process,” asserted the lawyer, who has also filed a lawsuit in federal court challenging the constitutionality of the state law.

“What they are bargaining for is exclusive, total control of the child. It is the purchase of the child’s rights.”

That harsh judgment will not sit well with couples and advocacy groups that seek to expand the pool of surrogate mothers and pass laws that give priority to the rights of the intended parents

“Appropriate legislation should be enacted to protect the rights of all the parties in a surrogacy journey and seamlessly terminate any parental rights and obligations of donors and surrogates,” read guidelines issued by Men Having Babies, a nonprofit that provides guidance for same-sex couples who hope to start a family and contends that surrogacy can be handled in an “ethical” manner.

 

‘Nothing More Than a Paid Breeder’

But whether such arrangements involve heterosexuals or same-sex couples, experts like Jennifer Lahl warn that good intentions aren’t enough. Surrogacy contracts regulate a commercial activity. They treat women and children like property and fail to accord them with the respect due to each human being.

“Melissa Cook will be seen in the eyes of the law, until it is changed, as nothing more than a paid breeder,” Lahl told the Register.

“The children’s best interest are rarely considered, and they will suffer the most."

Lahl still remains a great fan of Adele the singer. But she hopes the pop star will take another look at the disturbing reality of international surrogacy and the inconvenient truth that rich celebrities don’t carry babies for strangers. That job is left to women who need the money.

Joan Frawley Desmond is the Register’s senior editor.