Contract Pregnancies Exposed: Surrogacy Contracts Don’t Protect Surrogate Mothers and Their Children
The United States currently has a hodge-podge of state-level legislation regulating surrogacy. High-profile disputes over surrogate pregnancies demonstrate this is not a workable solution. Regulating surrogacy does not protect women and children. It only commodifies them more.
The current debate over surrogacy in the United States has two main positions. One side argues we should allow the practice with regulations. The other side argues it should be prohibited altogether. All parties in the debate generally acknowledge that there can be abuses and exploitation, and that the best interests of the children produced should be considered.
Is a contract that involves the exchange of money for the gestation and delivery of a child against public policy? The debate over this question both fuels and is fueled by competing ideas on parenting, family configuration, women’s rights, and the human desire for children. In recent decades, a new, commercial, profit-making industry has emerged, making the regulation vs. prohibition debate ever more pressing.
The crux of the disagreement is over what should be done in order to minimize the harms to those women who serve as surrogates and to the children who are produced from these contract arrangements. How can we protect all the stakeholders, including the intended parents? Many trust that regulations, laws, and contracts will provide sufficient protection. My position, however, is that regulations, laws, and contracts do not—in fact, they cannot—protect women and children. The only way forward is to pass laws to stop surrogacy now.
Milestone "Traditional" Surrogacy Cases
The first surrogacy arrangements were what are now called “traditional” surrogacies, in which the child the surrogate carries is genetically related to her—that is, created using her own egg. These early surrogacies were achieved by artificial insemination, generally with the sperm of the intended father. More common today are “gestational” surrogacies, arrangements in which the surrogate is not genetically related to the child she carries. In such cases, either donor eggs are used, or the egg of the intended mother is used. The sperm may come from the intended father (or fathers, in the case of gay male couples), or from a sperm donor.
Elizabeth Kane (a pseudonym) gave birth to a baby boy on November 9, 1980, in what is the first traditional surrogate contract pregnancy in the United States. Kane was artificially inseminated with the intended father’s sperm, producing a child biologically related to Kane and the intended father, who was married to a woman unable to bear children. Kane’s book, Birth Mother: The Story of America’s First Legal Surrogate Mother, documents her story. It is a heartbreaking saga of depression, despair, and damage to her family. Kane was eventually forced to surrender her child in exchange for $11,500.
Only six years later, another surrogacy captured the nation’s attention. On March 27, 1986, in New Jersey, Mary Beth Whitehead, a married mother who served as a traditional surrogate for William and Elizabeth Stern, gave birth to a little girl, the biological child of William Stern and Whitehead. This baby girl is famously remembered as “Baby M.”
Whitehead agreed to be artificially inseminated with the sperm from the intended father, and the Sterns agreed to pay $10,000 to Whitehead in return for her surrendering the child at birth and terminating her parental rights. But before that could happen, Whitehead came to the conclusion that she could not relinquish her child. What ensued was an extremely public custody battle that played out in national news and in the courts.
Eventually, the New Jersey Supreme Court reached a unanimous decision In the Matter of Baby M, which fueled a brief national policy debate. The court’s decision prohibited surrogacy arrangements in that state unless “the surrogate mother volunteers, without any payment, to act as a surrogate, and is given the right to change her mind and to assert her parental rights.” The law in New Jersey continues to hold that traditional surrogacy is illegal, and only compensated gestational surrogacy is prohibited.
The Rise of Gestational Surrogacy
The next notable case in the United States was unique in that it involved the first disputed commercial gestational surrogacy. The shift away from traditional surrogacy to gestational surrogacy was underway. In September 1990, Anna Johnson, a twenty-nine-year-old African-American woman and former Marine, entered into a gestational surrogacy contract with Crispina and Mark Calvert. As a result of a hysterectomy, Mrs. Calvert was unable to carry a pregnancy, but because her ovaries had not been removed, she was able to provide her eggs. The Calverts paid Johnson $10,000, per the contract.
Johnson bonded with the child in her womb and sought legal recognition as the mother, with access to the child. California Judge Parslow placed great weight on the fact that the Calverts were the genetic parents, declaring that Johnson was a “genetic stranger” to the child. Judge Parslow acknowledged Johnson’s “nurturing, feeding, and protecting the child,” but held that the role of the “gestational environment” of the womb was not clear. Further, he saw “no problem with someone getting paid,” and made the point that surrogacy was not baby selling but compensating the surrogate mother for pain and suffering. In ruling against Johnson, Judge Parslow found it in the best interest of the child to recognize as “mother” the person intending to raise the child according to the prior written agreement.
The case eventually made its way to the California Supreme Court, which rejected the argument that surrogacy contracts are against public policy, thereby making California a “regulation” state. In a powerful dissenting opinion, Justice Kennard stated, “the majority recognizes no meaningful contribution by a woman who agrees to carry a fetus to term for the genetic mother beyond that of mere employment to perform a specified biological function.” Further, Kennard recognized that the “gestational mother has made an indispensable and unique biological contribution, and has also gone beyond biology in an intangible respect that, though difficult to label, cannot be denied.”
These three cases prompted several states to enact surrogacy legislation. As the first state to make surrogacy a felony, punishable with up to five years in jail and a fine of up to $50,000, Michigan became a “prohibition” state. In 1988, The New York State Task Force on Life and the Law released a report, following one year of study after the Baby M case, with the following analysis:
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.
Ultimately, New York deemed surrogacy contracts contrary to public policy, and thus void and unenforceable. It remains a “prohibition” state, although recent efforts have sought to change it to a “regulation” state.
Thirty-seven years after the first contract pregnancy legal dispute, we find ourselves still debating whether allowing contracts that involve the exchange of money for the gestation and delivery of a child are against public policy. Without any federal policy regulating or prohibiting contract surrogate pregnancies, this debate continues state by state. Today, some states are entirely silent on the matter, some states regulate surrogacy through laws and contracts, and some states prohibit the practice altogether by refusing to recognize surrogacy contracts as legal or enforceable.
Real Surrogacy Contracts
Perhaps the most effective argument against surrogacy agreements is the language of the contracts themselves. Have you ever read a surrogacy contract?
I have. Quite a few, in fact, many drawn up in my state of California. California is one of our country’s most surrogacy-friendly states. A surrogacy-friendly state is one that allows commercial contracts, does not limit payment to a surrogate mother, and ensures that the intended parents will be the legal parents of the child, protecting intended parents from a surrogate mother's changing her mind and not relinquishing the child once born.
I believe that all surrogacy should be prohibited, not simply regulated. Laws, regulations, and contracts cannot ever protect women and children from all of its many harms. The typical surrogacy contracts that I will analyze below demonstrate clearly that regulations and contracts do not protect women and children. Instead, they facilitate their use as mere commodities—just another collection of products, goods, and services to be exchanged.
What’s in a Typical Surrogacy Contract?
Surrogacy contracts contain a lot of standard legalese. The typical Gestational Surrogacy Agreement opens with the names of the intended parents (or parent) and the name of the surrogate entering into the agreement. Notably, the word “mother” is never used with regard to the surrogate. It is used only if there is an intended mother involved. Indeed, the word “mother” is entirely absent when the agreement is between a single man or a gay couple and a surrogate.
A recitals section is also included, describing the intended parents and the surrogate (and her husband if married), and declaring that the surrogate is fully informed and intends not to assert parental rights or claims to the child. There is typically language declaring that the agreement is not for the purchase of a child nor for the surrogate’s consent to surrender the child for adoption. One contract boldly states that it is not in violation of anything “prohibited under California Penal Code Sections 181 and 273,” which would be baby selling or forced coercion to surrender a child.
A lot of medical and psychological testing and screening are required in these agreements. Sometimes it is only required of the surrogate, to assure she is physically healthy and mentally sound, but at other times the intended parents are required to be screened and tested as well. The payment structure is outlined, along with reimbursable expenses (clothing allowance, gas and mileage reimbursement to and from doctor appointments, lost wages in the event the surrogate has to miss work or stop working due to pregnancy-related complications, etc.). And there is always language establishing maternity and paternity once the child or children are born.
The most troubling aspect of such contracts is usually not the nuts and bolts, but the addition of all the whims and wishes of the intended parents. The intended parents get to direct nearly every detail of the surrogate’s life up to the moment of birth and surrendering the child. This makes the commercial use of the woman’s entire body for the duration of the pregnancy very clear.
Most contracts explicitly control the surrogate’s diet, exercise, living arrangements, travel, and activities. I’ve seen language requiring the surrogate to consume a vegan diet or only eat organic foods. Some intended parents do not permit the surrogate to dye her hair. One contract stipulated that “The Surrogate and her Husband agree that they will neither form, nor attempt to form, a parent-child relationship with any Child the surrogate may bear.” Contracting against maternal-child bonding, as if such a thing is even possible!
The confidentiality of personal health information is so serious that the federal government has instituted strict guidelines (HIPAA) to maintain it. Yet this confidentiality is simply written away in many surrogacy contracts. All of the surrogate’s medical information is available to the intended parents, who are often total strangers. Here is the language from one contract:
The surrogate expressly waives the privilege of confidentiality and hereby directs the release to the Intended Parents, upon their request, of the report and other information obtained as a result of any and all psychological, psychotherapy, or medical evaluations or testing obtained or performed as contemplated by this Agreement. The surrogate agrees that the Intended Parents are privy to psychological information relating to the Surrogate’s mental health and any other pertinent information relating specifically to this surrogacy arrangement.
Another contract states:
The surrogate waives her doctor-patient privilege, as required to perform on this Agreement, and hereby agrees to any release form required to allow the Intended Parents, the Agency, and the Alternative Intended Parents to communicate with all treating or attending medical personnel, and to review relevant medical records pertaining to Surrogate’s pregnancy or health.
Contracts also regulate when the surrogate can engage in sexual activity and with whom. Allow me to quote a lengthy section to demonstrate how complicated this gets:
Surrogate agrees that she will not partake in any sexual/intimate relations with any person, except her Partner (but only if he submits to medical testing as required in section X), while this Agreement is in effect and in particular from her initial medical screening as provided for in Section X up to and through the embryos transfer procedure and during her pregnancy with Intended Parent’s Child unless a future partner is medically screened and approved pursuant to subsection X. Notwithstanding Surrogate’s agreement to abstain from sexual/intimate relations with others, Surrogate further agrees that for a period of three weeks before an attempted transfer of the Intended Parent’s embryo to Surrogate’s uterus and continuing during Surrogate’s pregnancy with Intended Parent’s embryos, to the extent Surrogate or her Partner anticipate any intimate relations with an individual other than each other, and in the case of Surrogate’s Partner, he continues to maintain an intimate relationship with Surrogate, then Surrogate or Surrogate’s Partner shall arrange for any individual with whom they may become or are sexually active, being tested for any venereal and sexually transmitted diseases (including AIDS and the HIV Virus) and hepatitis prior to engaging in sexual intercourse.
Contracts also contain an Abortion/Termination Clause:
Surrogate specifically agrees to terminate prior to eighteen weeks at the election and discretion of the Intended Parents. With the exception of termination based on gender selection, which will not be permitted, the right of the Intended Parents to request termination/abortion is absolute and does not require any explanation or justification to the Surrogate, including but not limited to if any genetic abnormality or defect has been determined such as cerebral palsy or Down syndrome.
Fetal reduction is addressed as well:
The Intended Parents reserve the ultimate and sole legal right to selectively reduce before the completion of twenty (20) weeks of gestation . . . The Intended Parents have the sole right to determine the number of fetuses to selectively reduce taking into consideration the recommendation of the Surrogate’s treating physician . . . The right of the Intended Parents to request a selective reduction is absolute and does not require any explanation or justification to the Surrogate.
As a nurse, I have to confess that when I read this clause on end-of-life decision-making, my blood ran cold:
If the surrogate is in her second or third trimester of pregnancy and in the event that medical life support equipment is required to preserve and maintain the life of the Surrogate and if requested by the Intended Parents, the Surrogate and her husband agree that the Surrogate’s life will be sustained with life support equipment for a period to achieve viability of the fetus taking into account the best interests and well-being of the fetus . . . The Intended Parents will make the decision with regard to how long the life support should be continued prior to the birth of the Child taking into account the obstetrician or perinatologist’s recommendation and the desires of the family of the Surrogate. The Surrogate’s husband, or her next of kin, is solely responsible for determining the time at which life support treatment will be discontinued following the birth of the Child.
These contracts always include language regarding how to deal with a surrogate who does not comply. If the surrogate decides she will not terminate the pregnancy at the demand of the Intended Parents, contracts often state, in this kind of bold, uppercase formatting:
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