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One Woman's Vote on Surrogacy Laws

March 5th, 2014 | 7 min. read

By Lisa Rosenthal

Surrogacy Law for Gay Couples

I can pick apart The New York Times article about surrogacy. Some of the language stinks, such as the use of the word "hired" or paid". Some of the implications smell just as bad. A few of the assumptions led me down a garden path with which I was also uncomfortable.

Still and all, that wouldn’t be seeing the forest for the trees.  The article is clear and well researched on the facts and so it really would be about avoiding an uncomfortable subject.  I’ve talked and read enough on surrogacy in the last two plus decades, since the Baby M case and being in the field of infertility, to know that while each side would like to be perfectly right, while the other side is perfectly wrong, it’s not that simple.

So yes, I’d rather avoid discussing the issue and pick apart language or insignificant content. Since I try to avoid cowardice, here it goes anyway.

There is no right or wrong here. Maybe it comes down to choice, yet again. If a woman chooses to become a surrogate, to nurture another families baby, is it up to us to say that she couldn’t or shouldn’t? That’s really only one of the questions though and not the one that The New York Times piece was trying to address. The question being addressed in this article is about payment. Can or should a woman be paid for these “services”?  We have to start by acknowledging that there are very definite differences between expenses, remuneration and payment. It’s not just semantics.

Cost of Surrogacy

What are the expenses or cost of surrogacy? Costs incurred when a woman is pregnant with a child she is carrying for another family. So, it would probably be good to consider the following: medical health expenses; extra food because one is now eating for two, maternity clothes and more.

What is remuneration? Compensation is the most typical definition of remuneration. So that would probably look like; lost wages due to taking time off for doctors appointments, paying for a babysitter for the children that a surrogate all ready has and now needs help with, legal expenses in creating a contract, etc.

And here comes the crux of the matter. What about payment? Simple and plain. Payment for services rendered; the service being gestating and carrying a baby to term.  It’s even more complicated than that because deeper down, the issue is paying a woman to give up her parental rights to the child that she gives birth to, with whom she has no biological connection. Dig a little deeper down, into epigenetics and there is now research that placenta, blood flow, etc. actually are more of a biological connection to the woman carrying the baby than previously thought. Let’s go to the most basic level of this though.


What Makes a Family?

Basically, it appears that it’s been acceptable for a woman to be a surrogate as long as she’s doing it from the heart, and there is no payment expected or even allowed.  Altruistic or compassionate surrogacy, that’s ok, certainly in New York. That’s the way the law is now and it’s being challenged.

I said earlier that there is no wrong or right. Let’s take a look at that though. For a man or men to have children, a surrogate is a necessity, whether an altruistic or a compensated or a paid gestational surrogate.  There is no other way for a child to be born at this time other than to grow in the uterus of a woman. Are we denying basic human rights then in refusing to allow gestational surrogacy? Is it a basic human right to reproduce, to have children, to grow our families? Or is it only ok if there’s no money involved?

There’s a lot of hate out there that would say that gay men don’t have this right. These people, full of hate, would bring God into the conversation as well as morals, ethics, hell and more.

So maybe we have to look even a little further past the details into what makes a family.

Is it biology? Sociology? Anthropology? Simply the “correct” genders getting together? Being lucky enough to fall in love with someone who has the correct reproductive cells to work with your own to create a family?

Surrogacy Laws

What do you believe? Does it matter what you or I believe or should this be determined more objectively by the courts to ensure personal bias and religious beliefs don’t negatively impact human rights?

I believe that society dictates what our laws contain and that is then reflected back to us. We are a society that is overwhelmingly divided. While in many states it is now legal for same-sex couples to marry, Arizona, (to name one case) tried to pass a bill last week based on religious freedom that would give businesses the right to not serve gay couples. Couples that would be legally married in other states would visit Arizona on a vacation and not be able to buy a cup of coffee. This bill made it all the way to the Governor’s desk, before being vetoed. We watched the Olympics two weeks ago and the oppression in Russia was upfront and terrifying. In the United States, more same-sex couples are marrying, in more states than ever. Isn’t it rather a natural next step that after a marriage a family is expanded to include children? And how do we expect that to happen, without the use of a gestational surrogate?

Many of us believe that it is love that creates a family. That it is the one significant ingredient that is necessary. Do surrogates gestate babies to help other’s create families or because they are paid to do it?

Intentions Behind Surrogacy

Tell me, does it matter? If a woman wants to help another person have a family is it necessary that it’s only love that’s involved? Is it ok that she is paid for her services? Does it even make sense that she wouldn’t be? And how misogynistic are we to decide that women can’t make these decisions for themselves?

Does this turn women into baby-making, or baby-gestating machines? I personally support the need and even requirement for a gestational surrogate having their own stable family first, complete with children. They know what they’re getting into; in the intricacies and attachment pieces of the pregnancy and what that feels like, how one bonds with the baby as they are carrying him or her, in terms of childbirth,  and even how they might feel relinquishing the baby to its intended parents. There is much less possibility of unexpected feelings and afterthought for a woman who has experience with the process of pregnancy and childbirth than one who has not. Of course a stable family is open to interpretation and it’s more than possible that a woman who has no children and/or partner would do just fine carrying another person’s baby for them. Still, I support creating a situation less likely to have emotional and legal problems than one with more possibility of problems.

Surrogacy Gay Parents to Be

Protecting Surrogates for Gay Men

Everyone in this arrangement needs to be protected, emotionally and legally. There should be a contract, with each of the parties involve represented by independent counsel. Gestational surrogates need to be treated with dignity and respect, first and foremost. But they also need to be protected if things don’t go quite the way they are planned. What if the baby is born and has birth defects or a genetic disease or some other type of problem not anticipated? As the person who has given birth, is the gestational surrogate considered the default “mother”? What if the IP (intended parent) no longer wants the baby if there is something wrong with him/her? How is the gestational surrogate protected? What happens to the baby? These are the reasons for legal counsel for everyone involved.

And in case you’re thinking that this is very complicated; you are quite right, it is. But we’ve probably all been witness to uncomplicated, straight relationships that also get very difficult when a divorce happens. When there’s no third party and still the fighting and ugliness about visitation and rights to see the children get long, protracted and ends up in court. So let’s just not assume that it’s more complicated, it’s just different complicated. And in fact, given that attorneys should be involved, maybe it keeps things from getting complicated because many of these possibilities are considered and agreed upon about how they will be handled before they even happen.

Final Thoughts on Surrogate Motherhood

Bottom line, family building has become more complicated and it should reflect the principles and attitudes of the society in which we live. As well as protecting all participants.  Although there is considerable divide in the United States on the matter of “gay rights” (really human rights), in seventeen states plus the District of Columbia, same -sex couples are afforded the rights that the rest of the general public have enjoyed for decades. Decades, not forever, because until 1967, there were still several states in the US where an interracial couple could not wed. How absurd does that seem now?

Following this line of reasoning, it only makes sense that same-sex couples will have babies and children after they marry, (or like so many heterosexual couples, before they marry) and expand their families. For gay men, single, with a partner or a husband; it does mean the ability to have the legal right to work with a gestational carrier.

Me, I applaud these women who are supporting other people creating their families. NY State has to make some decisions about how these women are able to be financially supported while they are pregnant.  That decision should reflect today’s society and again, today, we have marriage to same-sex couples in seventeen plus states.

The natural next step is babies and children. My vote? Let women who are qualified to become gestational surrogates have their expenses covered, be compensated, and yes, even be paid for their time, effort and energy.

That’s my vote. And in this country, that’s how it works.

What’s your vote? 

Lisa Rosenthal

Working with Gay Parents To Be and our partner fertility clinic, Illume Fertility, as a dedicated Patient Advocate gives Lisa Rosenthal an opportunity to expand her passion and commitment to reproductive health and family building. Lisa is committed to supporting all families in having the families that they desire, in the ways that work best for them.

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