Womb for Rent
The brave new world of childless couples, enterprising lawyers, and surrogate mothers
Oct 7, 2013, Vol. 19, No. 05 • By CHARLOTTE ALLEN
In May 2012 the intended parents filed a lawsuit in Connecticut seeking to be declared the baby girl’s legal parents so they could turn the baby over for institutionalization as a ward of the state of Connecticut. The suit revealed—apparently for the first time—that the fertilized egg hadn’t come from the intended mother as Kelley had thought, but from an unknown egg donor, which meant that the intended mother had no genetic link to the baby and thus no parental rights, even in Connecticut. On June 25, 2012, Kelley gave birth to a full-term but medically beleaguered infant. The parties reached a settlement: The adoptive parents would raise “Baby S.,” as she was identified, and her genetic father would give up his parental rights in return for the couple being allowed to visit her from time to time.
Recriminations flowed in all directions. Kelley was vilified for not honoring her contract, for allegedly failing to disclose two previous miscarriages, for seemingly trying to extort extra dollars from the intended parents, and for refusing to abort an infant in whom she had no genetic interest and whose chances for a normal life were slim. The intended parents were excoriated for allegedly lying about the donor eggs, for guilt-tripping Kelley, and for trying to abandon their baby daughter. Fishman was castigated for threatening to enforce an abortion clause that he must have known could not be enforced and that arguably should never have been in the contract in the first place.
On the one hand, the Crystal Kelley fiasco could be said to illustrate the need for tighter state or even federal regulation of the largely unregulated and essentially free-for-all surrogacy industry. Issues relating to childbearing are typically matters of state law, which is a mishmash of outright prohibitions and silent leniency when it comes to surrogacy, with only a few states (among them Illinois, Nevada, New Hampshire, Texas, Utah, and lately, California) having laws on their books that specifically allow the arrangements (albeit with varying levels of restrictions). Those who advocate regulating the practice, including most lawyers who work in the field of assisted reproduction, argue that passing surrogacy laws would actually protect the rights of surrogates. Those women would have access from the beginning to their own independent attorneys (chosen by the surrogates but paid for by the intended parents) when signing the contracts, making it clear that they can be paid for their efforts without violating bans on baby-trafficking, and ensuring that they have adequate medical insurance (also paid for by the intended parents) to cover their pregnancies and any complications.
Regulation would also help rid the field of unscrupulous brokers who fail to screen either the surrogates or the intended parents carefully, proponents say. Crystal Kelley, as a financially desperate single mother whose psychological screening was said to have consisted of a single phone interview by a Surrogacy International employee, should have never been deemed surrogate material in the first place, some brokers say. “These arrangements have to be done properly,” says Andrew Vorzimer, a surrogacy lawyer in Woodland Hills, California, who prides himself on being a good apple in a barrel that he admits contains more than a few rotten ones. “It’s absolutely mandatory that both the egg donor and the surrogate have their own lawyers review the contracts,” Vorzimer says. “Sometimes the potential carrier will sign a waiver of counsel, but that just raises a red flag, as far as I’m concerned.”
Opponents argue that the problem isn’t rogue surrogacy or unregulated surrogacy but surrogacy itself. A strange-bedfellow coalition of religious and social conservatives, feminist groups such as the National Organization for Women, and lawyers who have represented surrogates in deals gone bad contend that the real purpose of the push for regulation is to establish a legal regime designed to privilege well-off intended parents over the lower-income women they hire to bear their children. Surrogacy is monumentally expensive—north of $125,000, sometimes up to $200,000 when all the medical, legal, and agency costs are factored in, including, often, the cost of an egg donation if the intended mother is infertile. It is also chancy—three-fourths of all surrogate transfers fail, according to statistics collected by the Centers for Disease Control and Prevention. And it is almost never covered by ordinary health insurance. It is safe to say that nearly all intended parents who sign surrogacy contracts are extremely well-off people with plenty of cash on hand with which to leverage the transaction in their favor.
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