Gestational Surrogacy: Why not for money?

March 22, 2011Carole No Comments »

Washington state is considering a new bill that would make paying a gestational surrogate legal. Currently, surrogates in Washington could be compensated for expenses, but payment for gestational services is illegal. States vary widely in their legal perception of surrogacy. You can find a state by state description on the All about website. Many states don’t specifically address surrogacy contracts in their state laws but permit surrogacy arrangements. Florida permits surrogacy only if the intended parents are a married couple, explicitly excluding same-sex couples from engaging in surrogacy contracts. Nevada ,New Hampshire , Tennessee, Texas and Virginia have similar “married couples only” restrictions.

Some states have different rules for traditional surrogacy versus gestational surrogacy. In traditional surrogacy, the surrogate also donates her own eggs and so has a biological link to any pregnancy. In gestational surrogacy, the surrogate gestates the embryo of the intended couple, so the surrogate has no biological link to the child. Surrogacy is actually illegal in the District of Columbia and Delaware. So obviously, if you enter in a surrogacy agreement, you need to have a good attorney guide you.

The question of compensation above and beyond expenses (medical expenses, pregnancy clothing, etc) is controversial. It’s not clear to me where the controversy lies. Some people are affronted that a woman should be compensated for carrying someone’s child. We pay nannies to watch our children every day. We don’t expect them to do that only out of love for our child. If the surrogate is related to the intended couple, it’s a wonderful gift of love, certainly, but even if it’s within the family, the surrogate is making a significant nine-month detour in her life in which she not as able to pursue a well-paying job or career as top priority in her life because she is pregnant.  In acknowledgment of the nine month detour in the surrogate’s life, doesn’t respect for the surrogate’s time and personal sacrifice almost require that payment be made above and beyond mere expenses?

One argument often advanced to not pay surrogates is that if compensation is allowed, poor women will necessarily be exploited by rich couples who need surrogates. I would agree that without laws that regulate surrogacy and protect both parties, exploitation is more likely. But that argues most strongly for more thoughtful laws, not outlawing surrogacy compensation. It is a little insulting to poor women to assume that just because they are poor, they are easy prey for the ethically challenged. Statistically speaking, most surrogates are middle class, just like their recipient couples. Some surrogacy programs actually ask about income to disqualify very low income women from participating because they don’t want to be perceived as exploiting poor women.

Surrogates, especially if they are matched through a center rather than a family member or close friend, are expected to have at least one child of their own and a history of uneventful “easy” pregnancies. Interviews that have been done with surrogates often reveal that in addition to wanting to doing a good deed for a family in need, they also recognize an opportunity to contribute financially for their own family, perhaps to get a house down payment together or pay for educational expenses for an older child. Interestingly, a disportionate number of gestational surrogates are military wives and often have to move around, making finding work outside the home more difficult.

Sadly, I have seen cases in which I had concerns that  younger family members or even girlfriends of sons were being  emotionally coerced into surrogacy for an older sibling or aunt or future-mother-in-law. I found those situations much more troubling than straightforward professional fee-for-service arrangements. I think this whole area needs some thoughtful regulation to better vet surrogates and intended parents so nobody gets hurt or exploited.

Some have put forward the argument that paying for gestational surrogacy is actually beneficial in allowing the surrogate to distance herself emotionally from the child she is carrying, making it easier for her to give up the child after birth. Although a three way emotional bonding between the intended parents and unrelated surrogate sound so warm and fuzzy, it is likely that over time, the intended mother may tire of sharing her child with the surrogate. It may be better psychologically for all involved to sever those ties at birth and let the new family go on its way. The well-compensated surrogate, in turn should feel good about a job well done. Obviously, in surrogacy arrangements within a family, there is no walking away emotionally. Family is forever- for better or worse.

Surrogacy is often compared to organ donation, in which compensation is prohibited  as unethical but the analogy is weak, at best. Surrogacy does not require permanently giving up a functional part of yourself. In a healthy woman, pregnancy is not likely to leave her physically impaired or damaged as a result of the pregnancy. Typically, women who would even consider a pregnancy for someone else tolerate pregnancy very well and enjoy being pregnant or at least don’t experience it as a painful, miserable experience. Since these women self-select for having easy pregnancies, they are less likely than an organ donor to have lasting health problems. Having said that, surrogates should be protected from multiple gestation pregnancies because those do increase the risk of pregnancy complications for both pregnant woman and child.

What do you think? Should we have laws to regulate surrogacy? Should compensation  above expenses be allowed?

© 2011, Carole. All rights reserved.

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