Regulating Surrogacy: In Whose Interest?
On April 7th, Washington D.C.’s new surrogacy statute went into effect, making contracts for surrogacy both legal and enforceable, subject to certain minimum qualifications. D.C. now joins eight states that also fully recognize and enforce surrogacy contracts, but in the remaining states, legal hurdles abound. Before updating its policy, D.C. law prohibited surrogacy, and subjected all parties to surrogacy contracts to $10,000 in fines and a year of jail time. Several states, including New York and Michigan, continue to void all surrogacy contracts, and impose civil and criminal penalties for compensated surrogacy contracts. Many more states do not have laws that either ban or protect surrogacy, so enforceability and parental rights are often determined on a case-by-case basis in courts, leaving surrogates and intended parents in a state of legal uncertainty regarding their parental rights, obligations, and legal entitlement to compensation.
Surrogacy as Labor
Early debates and litigation revolved around traditional surrogacy, or the artificial insemination of a surrogate who had both a genetic and gestational connection to the child. With the advent of in vitro fertilization (IVF), gestational surrogacy became possible, in which a surrogate could carry a child genetically related to separate donors or the intended parents. These advances in reproductive technology meant the demand for commercial surrogates was on the rise. Different surrogacy organizations report prospective commercial surrogates can expect an average baseline pay of $30,000 – $35,000, though some experienced surrogates are able to earn significantly higher sums, and rightly so—if we conceive of pregnancy as 24/7 physical labor for nine months, baseline salaries of $30-35k average only about $5 an hour. Not only do surrogates have to endure the physical labor of pregnancy and childbirth, but they must also undergo extensive medical testing and preparation for the IVF process. While the trend seems to be toward the recognition of surrogacy agreements, several states, including New York, continue to criminalize them. On their face, surrogacy contracts appear like regular labor contracts—an agreement to compensate an individual for the services they perform—so why are some states unwilling to accept their validity?
Complex and Competing Interests
There are a number of criticisms lodged against commercial surrogacy, and the anti-surrogacy movement has created odd alliances between feminist and religious groups. Columbia law professor Elizabeth Scott characterizes the criticisms as largely falling into two buckets—“baby selling” arguments and “exploitation” arguments.
An early criticism conceived of surrogacy as “baby selling,” rather than a sale of the surrogate’s services. The famous Baby M case—a parental rights dispute within a traditional surrogacy agreement—generated increased hostility toward commercial surrogacy, and led to the passage of many state prohibitions on the practice. Opponents claimed surrogacy undermined religious and social conceptions of family and commodified life, which should never be for sale.
Many feminist organizations opposed surrogacy in the 1980s and 1990s, and the ACLU also struggled to establish its position. In 1988, then-president of the ACLU Norman Dorsen said: “Until last weekend’s board meeting, the ACLU had no policy on surrogacy. The issue had been on the agenda four times, and been discussed an average of two hours each time, but we didn’t agree on anything until this past meeting.” They ultimately decided to join the Michigan affiliate, which had decided to challenge Michigan’s criminal penalties. Now, the ACLU often intervenes to protect intended parents, especially in the context of same-sex couples denied equal parental rights to children conceived through Assisted Reproductive Technology.
Most organizations have backed off from their oppositional stance, but many remain internally conflicted about the best policies for which to advocate. “Baby selling” arguments have largely given way to arguments about exploitation. Conservative politicians who express libertarian views about other labor and employment regulations, like minimum wage legislation, are often fiercely opposed to enforcing freely bargained-for surrogacy contracts, citing economic inequality and the inability of women to truly give informed consent. Similarly anomalous alliances can be seen abroad. In Europe, feminists and conservative Catholics have united in coalition to oppose surrogacy, in what the Atlantic called an “unlikely partnership.” Italian author Margina Terragni explained: “We see it as a struggle against the patriarchy, the Catholics see it as a struggle to preserve the traditional family, some anarchists see it as a struggle against capitalism.”
Other feminist writers critique the view that the anti-surrogacy position is favorable to women, calling it paternalistic to limit women’s choices under the assumption surrogacy contracting is exploitative or not fully informed. These women’s rights advocates are perhaps rightly skeptical, given the historic context of conservative lawmakers grounding discriminatory laws in pretextual interests in women’s health and safety.
Poorly Tailored Laws
While those opposing surrogacy on religious and moral grounds will likely continue to favor criminalization, the strongest opposing arguments from progressive and feminist groups concern the treatment of low-income women working as surrogates. The concern for exploitation should not be discounted—this is especially true when prospective parents seek cheaper surrogates in other countries where women work in poor conditions. But the current legal landscape of restrictions and regulations throughout the United States does not address the nuance of exploitation concerns. In many cases, surrogacy laws exacerbate, rather than address this issue.
As a starting point, the law generally presumes labor contracts are enforceable. Sometimes, when we are concerned about inequalities in bargaining power or discriminatory motives, we regulate aspects of labor or employment contracts to protect workers from exploitation. In the minimum wage context, advocates argue the free market will not adequately protect employees, so legislation is necessary to ensure employees can earn a basic living.
States that impose criminal or civil penalties for entering into surrogacy contracts provide the clearest example of laws that harm, rather than protect, the worker. It makes sense that, even in the 80s, the ACLU opposed the most stringent surrogacy bans like Michigan’s that imposed criminal sanctions. By creating legal sanctions for these contracts, the state does more than refuse to enforce a contract it finds exploitative, but goes further to express moral condemnation for anyone who engages in this particular kind of labor. Progressive advocates usually steer clear of these arguments, with courts and scholars recognizing that laws criminalizing surrogacy on moral grounds alone often work to oppress the most marginalized.
States that will award pre-birth orders of parentage to intended parents but not enforce the contracts, and states that allow uncompensated but not compensated surrogacy, may also serve to further disadvantage the surrogate. States with this legal framework recognize surrogates are performing a service for the intended parents, but simultaneously refuse to enforce any compensation agreement for their labor. These frameworks entrench, rather than address, the concern that surrogates may be exploited or underpaid. Rather, they appear rooted in the notion that we find it socially acceptable for women to serve as “compassionate” or “altruistic” surrogates out of the goodness of their hearts for a friend or family member, but we are morally opposed to financially compensating them for their labor. Writing for The Guardian, Jenni Millibank explains, “Women who undertake pregnancies for others in surrogacy arrangements are performing labour (in both senses) and they are undertaking risks. Paying nothing does not protect or value this role.”
Members of the New York senate introduced the Child-Parent Security Act in 2013 and again in 2015 to remove the statutory ban on surrogacy contracts and legally recognize intended parents. States like New York that continue to ban surrogacy should reevaluate these laws and the goals they intend to further. Concerns about the exploitation of low-income women are worth considering and may influence the regulation of minimum requirements for surrogacy contracts, but laws that criminalize or impose civil penalties do nothing to remedy any disparities in bargaining power. Similarly, laws that permit uncompensated but not compensated surrogacy do not get at the labor concerns for surrogates. Rather, they express only a moral view that surrogacy is permissible as a selfless act, but not real labor that we should allow women to be compensated for.