On Shaky Legal Legs: Surrogacy and the Law

By Rebecca Heilweil

Rebecca Heilweil is a freshman at the University of Pennsylvania.

Surrogacy, an age‐old process that has helped created unique and vibrant families, has improved the lives of many. Surrogates have enabled single, same‐sex, and infertile parents to have the children they’ve always wanted, thus contributing, in their own small way, to America’s unique culture.

But even successful surrogate stories can bring up questions regarding custody and parental rights, and unenforced surrogacy contracts become even more complicated. When money becomes involved and courts refuse to enforce surrogacy contracts, people feel personally victimized. Not only are thousands of dollars lost, but potential parents have also been denied the family that had been promised to them.

This June, in the New York Times, Tamar Lewin wrote about the complications that international surrogacy can create, focusing on "Planet Hospital," a business accused of surrogacy fraud. [1] Planet Hospital's founder, Rudy Rupak, argued that his business merely facilitated relationships between American couples struggling with infertility and surrogate candidates in countries like Thailand and Mexico. Nonetheless, many expecting parents found themselves without children.

 When multiple couples complained of unfulfilled surrogacy contracts, they were left with little legal recourse; meanwhile, Planet Hospital quickly claimed bankruptcy. Prosecuting for international surrogacy fraud is difficult when countries disagree about the morality of commercial parenthood. In the United Kingdom, for instance, even if both the parents and the surrogate sign surrogacy contracts, those agreements are not enforced. These policies, common in Western countries, incentivize couples seeking surrogates to look to places like India.

 In less‐developed countries, surrogacy becomes more of a reproductive justice and feminist issue. In countries where women face fewer job opportunities, women will often enter the surrogacy industry to support themselves. This creates issues of consent and custody, which prove difficult for countries to regulate across borders, as well as possible human rights violations. [2] Wombs thus become part of an already strong international market for sperm and eggs. [3]

 And this perhaps coercive air to surrogacy is not new. The Old Testament's Hagar, who can be seen as the "first" surrogate, was Sarah's slave and Abraham's concubine. In 2008, U.S. News published an article, titled “Why Scholars Just Can't Stop Talking about Sarah and Hagar,” discussing the lack of consent between the biblical patriarch and Hagar. [4]

 Within the US, states have varying policies regarding surrogacy. Some states have virtually no statutes pertaining to surrogacy, such as Alabama and Alaska. In Washington, D.C., surrogacy is strictly prohibited. In New York, commercial surrogacy is illegal. Other states, like Pennsylvania, require the contract be facilitated through a "legally recognized agency." In states where homophobia is more widespread, laws are more likely to limit access to surrogacy to legally married couples, proscribing potential single and gay parents from the process.

 Politically, surrogacy is an unspoken grey area; it is hard to determine whether it is condemned or celebrated by the right, left, or both. Yet the preconditions on surrogacy, if allowed, do tend to represent the political sway of their respective state.

 However, without statutes delineating custody, courts must decide. It is hard for judges to enforce surrogacy contracts, and ask the public to ignore the emotional turmoil the surrogacy process can have all on all parties. Some judges have held that a surrogate can never “knowingly” consent to a surrogate contract, since she is not able to anticipate how she could feel about the child when it is born.

 Perhaps the most famous surrogacy case is that of Mary Beth Whitehead, a New Jersey woman who was contracted in 1985 to carry a baby for a married couple. [5] While she was compliant with the contract for the entire surrogacy, four days following “Baby M”’s birthday, Whitehead took the baby and threatened to leave the country, claiming parental rights. While the intended parents eventually won custody, the publicity of the case highlighted the potential controversy that surrogacy presents, and made states significantly insecure about their lack of legislation regarding the issue.

 As the New York Times put it, Baby M is “all grown up now”, [6] but the question of surrogacy's moral, economic, and legal legitimacy remains, embedded within larger concerns about reproductive justice, economic freedoms, and international jurisdiction.

 
[1] Tamar Lewin, "A Surrogacy Agency that Delivered Heartache," The New York Times (July 27, 2014).
[2] Thomas D. Williams, "Daughter from Anonymous Donor Sperm: Surrogacy May Violate 'International Human Rights,'" Breitbart (November 13, 2014).
[3] Tamar Lewin, "Coming to U.S. for Baby, and Womb to Carry It," The New York Times (July 5, 2014).
[4] Julia M. Klein, "Why Scholars Just Can't Stop Talking about Sarah and Hagar," U.S. News (January 25, 2008).
[5] "Baby M Grew Up, but Surrogacy Remains Controversial," The New York Times (March 24, 2014).
[6] Ibid.

Photo Credit: Flickr user Aaron Webb