A Legal Foundation For Your Family

Alternative Facts And Surrogacy

On Behalf of | Feb 13, 2017 | Assisted Reproduction

I have just had the time to sit down and peruse Jason Adkins’ counterpoint editorial on surrogacy in the January 31 edition of the Minneapolis Star Tribune. It is disturbing how factually inaccurate it is when asserted in the context of consideration of surrogacy regulation in Minnesota. It seems we are moving as a society in the direction of political and social awareness based on a universe of “alternative facts.” If someone says something without any factual foundation loud and often enough, it apparently becomes credible – it becomes “true” even when it is not. 

Surrogacy opponents are utilizing this universe of alternative facts to falsely characterize surrogacy in Minnesota as something it is definitely not. By using buzz words and inflammatory language like “predatory,” “coercive,” “exploitation,” “broker,” “violence against women,” “baby-selling,” etc., minority surrogacy opponents like Mr. Adkins are trying to incite public opinion against a very stable, reliable, positive, and necessary reproductive process for aspiring parents suffering from uterine infertility (the inability to safely and successfully gestate their own child).

Our perception of surrogacy in Minnesota should be based on what is actually happening in Minnesota, not in Europe, or Canada, or India, or any other U.S. state. I have been working with surrogates and intended parents in Minnesota for over 25 years. I have met, interacted with, and come to know more than 400 exceptional women who have given of themselves and their time as surrogates primarily out of the desire to help an infertile family have the children they so instinctively crave. I have attended virtually every surrogacy commission hearing over the last year and listened to the testimony of other Minnesota professionals – doctors, psychologists, attorneys, and agency owners (“brokers”) – who interact with and support the surrogacy process here in our state. None of the surrogates or surrogacy professionals I have encountered fit Mr. Adkins’ characterizations as either “exploited” or “profit-driven.”

As chair of the ABA ART Committee for seven years, I personally monitored and participated in national and global discussions and initiatives regarding surrogacy. I have immersed myself in proposed state legislation (principal author of the 2008 Minnesota surrogacy statute that then-governor Pawlenty vetoed), uniform laws (ABA Liaison to the Uniform Law Commission on revisions to the Uniform Parentage Act), model acts (Chair of the ART Committee that obtained unanimous ratification of the ABA Model Act to Govern Assisted Reproductive Technology), and international conventions (presenting testimony to the U.S. State Department on a possible international Hague Convention to govern cross-border surrogacy arrangements).

What I have learned over those seven years is that surrogacy itself is a benign and beneficial process when properly regulated and implemented; it only becomes problematic when coupled with a toxic catalyst in the form of a social or cultural environment that encourages bad processes and practices. Such a toxic catalyst exists in places such as India where there is a large population of poor, uneducated women operating under the vestiges of a paternalistic, caste-based society in which many women have little free will. Such a toxic catalyst does NOT, however, exist in the U.S. or here in Minnesota, where three waves of American feminism and a strong women’s rights movement has produced a population of educated, independent women who can intelligently exercise their own free will in deciding whether to participate in the surrogacy process and on what terms. Surrogacy as it is actually occurring here in Minnesota is overwhelmingly a positive, rewarding process for virtually all participants.

As for Mr. Adkins’ inflammatory factual red herrings, I would like to correct some of them. Surrogacy is not “baby-selling.” The actual genetic or intended parents of the child create their own embryo with their genetic material before it is ever entrusted to the surrogate for her temporary care and gestation. It is not the surrogate’s child when the embryo is first created; it is not the surrogate’s child while she receives and expressly agrees to gestate it solely for the intended parents’ benefit; it is not the surrogate’s child when she gives birth and returns the child to the child’s actual parents. You cannot sell something that never belonged to you in the first place.

“Vulnerable” women are not “exploited” or “financially coerced” into becoming surrogates against their will here in Minnesota. The legislative record of exhibits presented to the 2016 surrogacy commission contains letters from more than 50 Minnesota surrogates uniformly stating that they entered the surrogacy process to help others after careful reflection and of their own free will. They all state they do not want our legislature intervening in their exercise of their own free will to act as surrogates. It also contains a survey of Minnesota surrogates reflecting that their average family household income was in excess of $100,000 and their average education level was 3+ years of college. Surrogates in Minnesota are by and large teachers and nurses and lawyers and social workers and, yes, Ph.D.s, each of whom entered the process for primarily altruistic reasons based on their love of their own families and their desire to share that experience with others.

There is, however, a non-traditional coalition of surrogacy opponents: t hose who oppose any form of medical intervention in the reproductive process (primarily the Catholic Church – and I’m a life-long Catholic and fully understand its dogma), those who oppose women’s reproductive rights such as abortion and contraception (because embryos created for transfer in the surrogacy process may go unused and because pregnancy management is expressly discussed and negotiated between the surrogate and the intended parents), some early feminists (who believe women should not be “defined” by their reproductive capacity), and family-value moral conservatives (who believe that only married, heterosexual couples should have children). Nevertheless, I firmly believe these groups still represent a minority of Minnesotans.

A Gallup poll taken shortly after the Baby M surrogacy dispute was litigated in New Jersey in 1987 showed at that time that more than 60% of Americans nationally approved of the surrogacy process for a woman who could not carry her own child. I strongly suspect that number is likely quite higher now. Most religions accept and support surrogacy as a means for having children, unlike the Catholic Church. In addition, contrary to Mr. Adkins’ implication, many feminists actually support a woman’s individual autonomy to act as a surrogate. The surrogacy commission’s documentary record also contains a letter from the head of Minnesota’s National Organization for Women (N.O.W.) expressly stating that N.O.W. has members on both sides of the surrogacy debate and has no state or national policy either for or against surrogacy.

As the California Supreme Court stated in its landmark surrogacy decision on compensated surrogacy in Johnson v. Calvert in 1993:

We are unpersuaded that gestational surrogacy arrangements are so likely to cause the untoward results [the surrogate] cites as to demand their invalidation on public policy grounds. Although common sense suggests that women of lesser means serve as surrogate mothers more often than do wealthy women, there has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment. We are likewise unpersuaded by the claim that surrogacy will foster the attitude that children are mere commodities; no evidence is offered to support it. The limited data available seem to reflect an absence of significant adverse effects of surrogacy on all participants.

The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genes. Certainly in the present case it cannot seriously be argued that Anna, a licensed vocational nurse who had done well in school and who had previously borne a child, lacked the intellectual wherewithal or life experience necessary to make an informed decision to enter into the surrogacy contract.

Mr. Adkins also clearly believes that, of all the participants in the surrogacy process from doctors to lawyers to psychologists and others, only the surrogate should not receive any consideration for her very real time, effort, and health risks. This is clearly illogical and inappropriate, but it is asserted only because Mr. Adkins knows that banning any such consideration would drastically reduce the number of women who would undertake the process and, essentially, be the end of surrogacy here in Minnesota. (As for other U.S. states, since 1994, 17 states have addressed surrogacy in some fashion, and all of them save one – Louisiana – expressly or impliedly allow the payment of consideration to the surrogate.)

Mr. Adkins implies that surrogates in Minnesota should not work with intended parents from other countries. To impair each surrogate’s right to choose her surrogacy experience for herself based upon such xenophobic criteria is simply inappropriate and misdirected.

Surrogacy for reasonable consideration is working well here in Minnesota. It would work even better if it were reasonably and properly regulated. Opponents self-select only the rare bad outcomes to raise an outcry against the process. No legislation prevents every bad outcome in any area of the law. Proper regulation of compensated surrogacy here would make the rare bad outcomes even rarer and safeguard and preserve a necessary and appropriate reproductive choice for infertile Minnesota women. 

By Steven H. Snyder, Esq.

Immediate Past Chair of the American Bar Association (ABA) Family Law Section Assisted Reproductive Technology (ART) Committee