Surrogacy is becoming more common, and lawmakers must confront a host of tough questions.
In the delivery room where a baby has just been born, identifying the mother should be a fairly easy task. But, in fact, it's not always simple. Is the woman lying in bed who just gave birth the infant's mother? If the hospital is in Arizona, New York or Michigan, the answer is an unequivocal yes. But what if the woman standing next to the hospital bed contributed the genetic material? If the hospital is in California, Illinois or Utah, the answer is that SHE is the baby's mother. And in the majority of states, policy makers have yet to formulate a legal definition of parenthood.
That's a risky situation in the age of surrogate births, when it's feasible for an infertile couple to have a baby that is genetically their own but is brought to term and given birth by another woman. Surrogacy is still relatively rare, in part because it's very costly. Baseline fees for surrogates start at $10,000 but usually hover closer to $20,000. Add the high medical costs of the procedure and the legal fees usually associated with these contracts, and couples using a surrogate can expect to spend $100,000 to $150,000 before their baby's even born. Reliable figures on the number of surrogate births don't exist, but most experts estimate that about 1,000 to 1,200 babies are born to surrogates in the United States each year. Nonetheless, the number has grown significantly in the past decade or two. That higher profile brings even more controversial questions to the forefront: Is surrogacy a needed option for couples that can't conceive? Or does allowing couples to pay surrogates amount to baby-selling?
Legislation in the states runs the gamut, from extending surrogacy rights to all citizens (including singles and gay couples) to prohibiting money from changing hands to outlawing surrogacy altogether. But what's most surprising is that most states don't have any answer to these questions: Twenty-six states have no law on surrogacy at all. They may soon be forced to deal with the issue, however. Advances in reproductive technology have made surrogacy a viable choice for infertile couples. And with more and more same-sex couples turning to surrogacy, some groups are viewing it as a gay- rights issue. The upshot is that states are increasingly going to find themselves confronted with the question of what exactly makes someone a parent.
The notion of surrogacy has been around for millennia. As depicted in the Old Testament, all that the practice technically involves is a woman willing--or forced--to have sex with a man and then give up her baby to be raised by the man and his wife. The inherent complications with these arrangements--ethical and moral questions, emotional issues, health concerns--meant that surrogacy was rarely considered much of an option for couples who couldn't conceive. But near the end of the 20th century, the definition of surrogacy began to shift because of changes in reproductive technology.
As doctors in the 1970s and '80s perfected methods of sperm collection and artificial insemination, surrogacy no longer needed to involve intercourse. Then, in the late 1980s, another technological milestone changed the practice even more. Using in-vitro fertilization, doctors could combine a husband's sperm and his wife's egg and implant the embryo into a surrogate, who would then carry it to term. It's a process called gestational surrogacy. Suddenly, a surrogate could give birth to a baby with whom she shared no genetic connection.
And that's when surrogacy entered the public policy arena, in the form of the 1988 "Baby M" case. A New York couple, the Sterns, had contracted with a New Jersey woman named Mary Beth Whitehead to serve as a surrogate (although through traditional IVF, fertilizing Whitehead's own egg). When the baby girl was born, however, Whitehead refused to give her to the Sterns. Ultimately, a state court, on remand from the New Jersey Supreme Court, awarded custody to the Sterns and gave Whitehead visitation rights. But the drama surrounding the case--at one point, Whitehead fled to Florida with the baby-- captured national attention.
For legislatures, the Baby M case shed light on the fact that states across the country were unprepared to handle questions about surrogacy contracts. Were they legally binding? Should a couple be allowed to pay a surrogate? States saw a flurry of legislation in response to Baby M. Several legislatures considered bills addressing surrogacy, which usually meant either regulating or outlawing it. Eighteen states adopted surrogacy laws in the late 1980s and early '90s.
A LEGAL PATCHWORK
Baby M put surrogacy on the public policy radar, but the legislative landscape nearly 20 years later is extremely uneven. There's no federal law governing surrogacy, and state regulations revolve around vague statutes and shaky case law. Everyone agrees that California is the most permissive state for surrogacy; Illinois and Massachusetts also offer broad surrogacy rights. At the other end of the spectrum, Arizona, Michigan and the District of Columbia ban all surrogacy arrangements. Some states, including Nebraska and New York, expressly stipulate that surrogacy contracts are unenforceable. In Nevada, Florida and Washington State, such contracts are legal, but the law prohibits the exchange of any money. And half the states still have no laws on surrogacy at all.
The nation's surrogacy laws form a legal patchwork that eschews geography or Red State/Blue State delineations. "Basically, it's the Wild West," says Charles Kindregan, a law professor at Suffolk University in Boston and chair of the American Bar Association's Family Law Section Committee on Assisted Reproduction and Genetics. "States have taken an ad hoc approach to this, and now it's a free- for-all."
But it's not just the state-to-state differences in law that make surrogacy questions so difficult to answer, Kindregan says. It's the utter lack of a law in so many places. "The absence of law has just created a mass of confusion, and it's going to get increasingly problematic in the future." Internet technology is enabling couples to conduct wider searches for surrogates, and Kindregan says states are already facing scenarios in which, say, an Ohio couple contracts with a Pennsylvania surrogate using an egg donor from Texas.
The only predictor of which states have statutes allowing surrogacy seems to be whether a high-ranking legislator has personally dealt with an inability to conceive. "You can trace almost any state law on surrogacy to someone who experiences infertility, or knows someone who does, and they're high enough in the legislature," says Joan Barnes, the president of the American Surrogacy Center, a national advocacy group.
In the past few years, there has been some effort to standardize states' approaches to surrogacy. In 2000, the National Conference of Commissioners on Uniform State Laws approved the Uniform Parentage Act. The model legislation sets parameters for determining parental rights, including cases involving surrogacy. A handful of states-- Delaware, North Dakota, Texas, Utah, Washington and Wyoming--have adopted versions of the UPA. But because surrogacy is such a thorny issue, the authors of the model law put the section regarding it in brackets, which has led states to change the surrogacy chapter as they see fit--or delete it altogether. The result is that large inconsistencies remain even in the states that have adopted the UPA.
Most of the opposition to surrogacy regulation comes from social conservatives, who believe state-sanctioned surrogacy is inappropriate because it can involve paying a woman to bear a child. (Some resistance to surrogacy laws also comes from adoption advocates, who predict that making surrogacy easier will reduce the number of people who want to adopt.) In Utah, which last summer became the most recent state to adopt a law permitting surrogacy, one senator decried that the bill would create "a cottage industry for selling babies." But that's a specious argument, says Debora Spar, a Harvard Business School professor and the author of the recent book "The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception." "We need to fess up," she says. "We are already selling babies. We allow adoptions, egg donation, sperm donation. Why allow those but disallow surrogacy?"
SURROGACY AND GAY COUPLES
Surrogacy is an increasingly available option for infertile couples, but it's also a feasible choice for another group: gay couples. Hard data on gay couples' use of surrogacy is as sketchy as it is for straight couples, but, anecdotally at least, it seems to be on the rise. For example, Growing Generations, a Los Angeles-based company formed in 1996 to help gay couples go through the surrogacy process, handled four births in 1998. Now it takes in 30 new cases a month. "Twenty years ago, most of the gay or lesbian parents we saw had had their children in a previous heterosexual relationship," notes Jennifer Chrisler, executive director of Family Pride Coalition, a nonprofit advocate for lesbian, gay, bisexual and transgendered parents and their families. "But then we started to see a trend among the gay and lesbian community toward the desire to create their own families."
Moreover, surrogacy could become an even more attractive option for same-sex couples if more states act to ban adoptions by gay people. "Gay couples are already a not inconsiderable piece of this market," says Debora Spar. "With more places clamping down on gay adoptions, it could become even bigger."
Some states that allow surrogacy have restricted gays from having access to the service. In Utah, for example, legislators passed a version of the Uniform Parentage Act, but they rewrote it so that it would apply only to infertile, married, straight couples. "There was no way we would have gotten a bill through without those restrictions," says Senator Lyle Hillyard, the bill's sponsor. Other states, such as Illinois, which passed surrogacy regulations in 2004, did not include such restrictions. But the only sure bet for gay couples is California, which Chrisler says is "leaps and bounds ahead of other states on this."
What's clear is that the technology of conception has changed, and the makeup of families has changed. The definition of surrogacy also has evolved, and states haven't kept up. And even though surrogacy is never likely to affect a huge swath of the populace, lawmakers can be certain that the issue will come up at some point in their state. Answering the question of what makes someone a parent is anything but simple. But it's a question that will remain with us a long time.