Surrogacy laws differ from state to stateSeptember 22, 2014
A new sperm donor lawsuit enters the courtroomOctober 3, 2014
Current media coverage surrounding surrogacy has been tainted leaving many wondering why the topic of surrogacy is so one-sided.
The New York Times kicked off those chains, offering five, well-rounded articles on surrogacy.
Nidhi Desai wrote, Legalize Surrogacy So It Can Be Regulated. Also an attorney who specializes in adoption and reproduction issues, she focused on extinguishing surrogacy hostility.
She writes, “The current debate surrounding gestational surrogacy has lost sight of the incredible potential for these arrangements and has instead turned the issue into a political sword to fight any number of tangential issues. The question we should be asking as a society and within each state is how do we legislate these arrangements in a manner that protects all parties involved?”
A pithy question weaved with a positive impact.
“To protect all parties involved and address all interests, surrogacy should be widely legalized so that each state develops a framework within which it defines how we balance the complex interests of the parties,” Desai writes.
She goes on to reference Illinois, where there is consent, medical and psychological screening, legal representation, and more.
“Illinois further protects the process by ensuring that regardless of what happens to the intended parent or parents during the pregnancy, the surrogate is treated fairly and consistent with the terms of the agreement, and that intended parents, the surrogate and the state have the security of knowing that the intended parents are legally responsible for any resulting child,” she reports.
I also wholeheartedly agree with Margaret Swain in her article, When a Surrogate Has a Genetic Role.
Also an attorney in our field, she discusses the vast difference between gestational and traditional surrogacy.
In gestational surrogacy, a woman is implanted with a created embryo which has no genetic link.
“In contrast, a traditional surrogate is inseminated with the sperm of either the intended father or a sperm donor, and agrees to place the child with the intended parent or parents following birth. In the majority of jurisdictions, because of this genetic connection, an adoption (or some other type of parental rights termination) must occur before the parental rights of the intended parent or parents are finalized,” Swain writes.
A traditional surrogate has “birth mother” rights without legal documentation stating otherwise.
“In Arkansas and Wisconsin traditional surrogacy contracts are enforceable under case or statutory law. In those places, the intended parents, the surrogate and the child are ensured of the outcome of the arrangement, and the permanence of the placement is not subject to challenge, provided the arrangement falls within the requirements of the law,” Swain mentions.
If traditional surrogacy is decided, Swain recommends documentation be “carefully drafted, comprehensive legislation as to how those arrangements should be conducted,” to ensure protection.
And I fully agree.
Another great article in this series was by Andrea Braverman, Professionals Must Deal With a Surrogate’s Emotional Needs. Her credentials include clinical associate professor of obstetrics and gynecology, and of psychiatry and human behavior.
Braverman has been involved in the field of surrogacy for 25 years.
She begins her article opening with, “Women are able to make better choices about participating in gestational surrogacy when they are fully informed about the medical, emotional and legal challenges of the process. Psychological counseling and screening for the gestational surrogate and intended parents are a critical part of how surrogacy has been made safe, ethical and protective for everyone involved.”
She goes on to write, “Education and evaluation through counseling reduces risks by screening for psychopathology or unrealistic expectations. Research shows that psychological counseling helps surrogates and intended parents collaborate to create a positive experience.”
I also agreed when she pointed out how ongoing counseling for the surrogate is essential. Having an experienced counselor on hand can assist a surrogate during challenging parts of the journey.
One author I disagreed with was Arthur Caplan in, Paid Surrogacy Is Exploitative.
He writes, “I have no issue with altruistic surrogacy. It is paid surrogacy that gives me ethical heartburn, especially paid surrogacy that involves travel to other nations to find poor women to bear babies.”
Why shouldn’t a surrogate get paid for what she is doing? It takes dedication, work, and commitment. And intended parents are so indebted to her.
In my practice, surrogacy is not a woman’s main source of income and it never should be.
The other article, written by Lisa Ikemoto, a law professor was entitled, The Role of International Law for Surrogacy Must Be Expanded.
Ikemoto writes, “In the global market, legal uncertainty makes surrogacy fraught for intended parents and for birth mothers.”
She highlights the challenges regarding legal citizenship and legal parents. According to Ikemoto, international law could change this.
“At the least, surrogacy should only move forward when children born of surrogacy will have legal parents and citizenship assured, when surrogates’ health, well-being and daily lives are prioritized, and when intended parents are protected against discrimination based on marital status, sexual orientation, or other status.”
I agree. But in the meantime, having an attorney who specializes in national and international reproduction issues is the next best thing.