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
Furthermore, opponents say, the real aim of regulated surrogacy is the bypassing of state adoption laws, which typically contain thick layers of protection for children put up for adoption and the women who bear them. Such basic requirements of adoption proceedings as home studies, third-party screening of intended parents, court approval of the entire transaction, and perhaps most significantly, the right of a woman to change her mind after the baby is born, all go by the wayside in surrogacy arrangements, where the key element is that the woman agrees irrevocably to give away the infant she is carrying long before its birth and sometimes before it is even conceived. “The woman is just an Easy-Bake Oven—she’s a rented womb,” says Jennifer Lahl, a former pediatric nurse who is now president of the Center for Bioethics and Culture, a nonprofit organization that opposes surrogacy arrangements. In 2010 the center produced an award-winning documentary, Eggsploitation, about the medical risks of egg donation that it says are never fully explained to the donors themselves, and a similar film about surrogates is in the works.
Lahl says that surrogacy contracts ignore the intimate bonding that naturally occurs between a pregnant woman and the baby that grows in her womb for nine months; the physical changes, such as the formation of breast milk, that turn her body into a nurturing haven; and the brand-new science of epigenetics, which studies, among other things, how the environment of the uterus can alter the ways in which embryonic genes express themselves. All those factors, Lahl says, can make a surrogate very much like a biological mother, with all of a biological mother’s devotion and protectiveness toward the child she is carrying.
The chief advocates of regulated surrogacy, Lahl and others point out, are the owners of commercial surrogacy agencies, operating either legally or underground in nearly every state in America and estimated to be worth a cumulative $3 billion annually. You don’t need a license to be a surrogacy broker. All you need, if Surrogacy International is any guide, is a list of potential carriers, a friendly IVF clinic to effect the embryo transfer, and some stock photos of adorable babies to put up on your website. Google the word “surrogacy,” and you’ll get a blizzard of names: Circle Surrogacy, Growing Generations, Baby Steps, Shared Conception, Creative Family Connections, Surrogacy Plus, Coastal Surrogacy, Southern Surrogacy, Modern Family Surrogacy Center. Their client base isn’t just Americans; surrogacy is illegal in most countries, so America is an assisted-reproduction mecca for prosperous foreigners with fertility problems. This is the free market at its most exuberantly competitive, and sometimes at its most exuberantly unscrupulous. Shady operators seem to emerge in the news every few months. In 2009 a surrogacy agency in Modesto, California, called Surro-Genesis USA Inc. abruptly closed its doors when it turned out that the supposedly independent escrow company into which intended parents had deposited more than $2.4 million to cover surrogacy costs turned out to be a sham. Surro-Genesis’s owner, Tonya Collins, had allegedly spent the escrow money on clothes, cars, jewelry, and vacations for herself and others. Earlier this year she was sentenced to five years in federal prison for fraud.
Regulating surrogacy via state law would presumably cut abuses such as these, but it would also make surrogacy contracts potentially ironclad—thus turning what is currently a black- or gray-market operation in most jurisdictions into a respectable and likely even more lucrative enterprise. The trend right now in state legislatures is in exactly that direction. In September 2012, California’s Democratic governor Jerry Brown signed into law a surrogacy bill—mostly drafted by surrogacy lawyer Andrew Vorzimer, as it happened—that codified a California supreme court decision from 1993 that had made surrogacy contracts enforceable in California courts for nearly two decades. Legislatures in New Jersey (in June 2012) and Louisiana (earlier this year) similarly passed bills by overwhelming majorities that would have legalized and regulated surrogacy. The bills failed to become law only because they were vetoed by those states’ Republican governors, Bobby Jindal and Chris Christie respectively (surrogacy advocates blamed the GOP’s religious base). A surrogacy bill is pending in the District of Columbia, which, like Michigan, exacts criminal penalties for entering into surrogacy arrangements. All 13 members of the District of Columbia Council have cosponsored the bill, titled the Collaborative Reproduction Act of 2013, which would not only nullify the criminal penalties in the existing District law but would automatically make the intended parents of a surrogacy-born child its legal parents. The bill, scheduled for a vote on September 30, is almost certain to pass, and Mayor Vincent Gray, a Democrat, has expressed no serious opposition.
State legislators’ favorable response to legalizing surrogacy contracts has much to do with sympathy for married couples who yearn for children genetically linked to them but who can’t bring them into the world in the ordinary way for a variety of medical reasons. Surrogacy looks very much like a technological helping hand in these cases. Indeed, the upscale couples who can afford to pay for a surrogate pregnancy and who most strongly support legalizing it are the group most plagued by female infertility—typically from waiting to start families, as many women with careers do these days, until their mid-thirties and beyond. Celebrities such as Elizabeth Banks, Nicole Kidman, and Sarah Jessica Parker, who battled infertility for years before turning to assisted reproduction, have lent legitimacy and star power to surrogacy arrangements. In May 2012 GOP presidential contender Mitt Romney’s oldest son, Tagg, and his wife, Jen, announced the birth of twin boys via surrogacy. According to the American Society for Reproductive Medicine (ASRM), a professional organization for the physicians who handle the medical aspects of egg donations and embryo transfers, the number of children born in the United States via surrogacy has more than doubled during the past decade: from 530 in 2004 to 1,179 in 2011. Births from donated eggs rose to 9,541 in 2011 from 7,284 in 2004.
There is another powerful constituency pushing for relaxation of the bans on surrogacy: gay men. In June the Supreme Court issued a pair of decisions that made it likely that same-sex marriage will soon be universally legal in America. So there is now a burgeoning new category of infertility to be alleviated by surrogacy contracts: “social infertility”—that is, infertility caused not by medical impediments to reproduction but by lifestyle decisions. That group includes women who do not wish to carry their own babies for one reason or other, but it mostly consists of men: single heterosexuals who cannot find wives or who choose not to marry, and gay men.
Gay couples, who are often well-to-do double-income professionals, are a carefully targeted market for both surrogate-born offspring and support for changes in the law that would facilitate surrogacy contracts. Most surrogacy websites include explicit appeals to gays: a photo of two model-grade young males cuddling a “gayby,” or, in the case of one broker, an entire page titled “Surrogaycy.” A surrogacy agency in California has reported that gay couples now make up nearly a third of its intended-parent clientele, and gays now have their own surrogacy celebrities: Elton John, Ricky Martin, and the late Michael Jackson. The District of Columbia legalized same-sex marriage in 2010, so it is not surprising that the chief sponsor of the D.C. surrogacy bill is David Catania, a political independent who is the council’s only openly gay member. The District’s surrogacy bill, like the 2012 California law, makes it clear that any adult, gay or straight, single or married, can be an intended parent and enter into a valid surrogacy contract. Surrogacy has in some ways become a gay-rights issue.
When surrogacy first became common during the 1980s, there were no Crystal Kelleys carrying infants not biologically related to them. The most common procedure was not to bother with costly IVF but to inseminate the prospective surrogate directly with the sperm of the intended father. The woman was known as a “traditional” surrogate—in contrast to the “gestational” surrogate that Kelley was. The problem was that in traditional-surrogacy cases the surrogate was also the biological mother of the baby—that is, the baby’s real mother in the eyes of nearly everybody. In 1985, 29-year-old Mary Beth Whitehead of Brick Township, New Jersey, working through a New York City surrogacy agency operated by a lawyer named Noel Keane, agreed to be paid $10,000 to bear a child via traditional surrogacy for a Tenafly couple, William and Elizabeth Stern. Whitehead was a high-school dropout and former bar dancer who had two children by her then-husband, Richard, a garbage-collector. The Sterns were a research biochemist and a pediatrician respectively. Elizabeth Stern was not technically infertile, but she possibly had multiple sclerosis and feared that pregnancy would be a health risk to her.
After the baby girl was born, Whitehead realized that she could not bear to part with her, and she and her husband fled with the infant to Florida. The resultant “Baby M.” case (the Sterns named the child Melissa), in which the Sterns sued Whitehead to enforce the surrogacy contract, terminate Whitehead’s parental rights, and gain permanent custody of the baby, garnered nationwide publicity and considerable sympathy for Whitehead. A trial judge upheld the contract and ordered Whitehead to hand over the baby to the Sterns, but in 1988 the New Jersey supreme court ruled unanimously that paid surrogacy amounted to baby-selling and declared the contract void as a matter of public policy. “There are, in a civilized society, some things that money cannot buy,” Chief Justice Robert Wilentz wrote.
The Baby M. ruling was widely acclaimed at the time, supported not only by such predictably conservative groups as the Catholic League for Religious and Civil Rights and Phyllis Schlafly’s Eagle Forum, but also the National Organization for Women and a roster of well-known feminists, including Gloria Steinem, Betty Friedan, and novelists Margaret Atwood and Marilyn French. One of those high-profile Second Wave feminists, Phyllis Chesler, author of the 1986 book Mothers on Trial: The Battle for Children and Custody, recalls that she at first had a hard time persuading her fellow feminists, who tended to delay motherhood themselves and also to look down on full-time mothers, that the Baby M. case was actually “about a poor woman forced to give up her baby. There’s a belief that a higher-income mother and father make better parents. They tended to argue that a contract is a contract.”
Eventually, Chesler says, feminists did come to see surrogacy as a women’s issue. Taking the side of lower-income surrogate mothers against the well-off people who had the money to buy their children became a standard progressive cause. A bioethics commission in New Jersey went so far as to urge that surrogacy be criminalized, a step that the state declined to take, although Michigan and the District of Columbia did. Entering into a surrogacy contract in the District is currently punishable by a $10,000 fine and up to a year in jail.
Even two decades ago, however, a handful of state courts—including the California supreme court—were insisting that gestational surrogacy was simply a service, and that there was nothing wrong with compensating for the time and discomfort of a woman who had willingly agreed to bear a child for someone else. Contra New Jersey, the California high court declared that if there was a valid surrogacy contract, the intended parents were to be deemed the infant’s legal parents—a linchpin of the surrogacy law that California enacted in 2012.
Furthermore, although Mary Beth Whitehead won the war, she lost the battle. Citing some threats she had made during the litigation to kill both the baby and herself, an unsupported claim that William Stern had molested her older daughter, and her unstable family life (she became pregnant by another man and divorced Richard Whitehead to marry him), the New Jersey supreme court affirmed the award of Baby M.’s custody to the Sterns. Although Whitehead (by then Whitehead-Gould) was granted visitation rights, Melissa Stern became so alienated from her mother that when she turned 18 in 2004, she allowed Elizabeth Stern to adopt her, and she chose Harvey Sorkow, the lower-court judge who had originally terminated Whitehead’s parental rights, to officiate at her wedding in 2011.
After the Baby M. decision, surrogacy took a new turn. Traditional surrogacy involving biological mothers with their claims of kinship nearly disappeared, at least as a commercial proposition. It has been almost entirely replaced by IVF-generated gestational surrogacy, in which the woman carrying the child has no genetic link to it and thus a theoretically lower chance of wanting to keep it after birth—or of garnering much sympathy if she does. IVF can also create a baby who is biologically related to both its intended parents, not just the father. Indeed, surrogacy agencies these days never use the word “mother” when referring to surrogates: The preferred term is “gestational carrier.”
The switch to gestational surrogacy, together with advances in the technology of assisted reproduction, spawned a brand-new medical specialty, reproductive endocrinology, and a brand-new medical enterprise, the infertility clinic. Because IVF and embryo transfers are far more complex and expensive than relatively simple artificial insemination, the cost of surrogate childbearing shot up accordingly. The Sterns’ contract had called for them to pay a mere $17,500 in total (about $35,000 in today’s dollars), compared with the $125,000 or more that surrogacy currently costs. The procedure also became more complicated, time-consuming, uncomfortable, and risky for the surrogate herself. In a 2009 article titled “The Other Side of Surrogacy” for the online mom-zine Babble, writer Jennifer Block related the experiences of a woman she called “Laurel,” who volunteered after bearing two children of her own to become a gestational surrogate at no charge for a childless friend:
And Laurel was lucky—since most IVF-generated pregnancies fail, surrogates must often endure multiple embryo-transfer sessions until one of the fertilized eggs finally takes (or not). But then she found herself carrying twins, a not uncommon occurrence because the norm is to transfer multiple zygotes with the hope that at least one will successfully implant and survive. Laurel had sailed through her first two pregnancies, but this one was excruciating: exhaustion, constant aching, discomfort, and chronic nausea. For reasons still poorly understood, IVF pregnancies seem to generate more medical problems than ordinary ones. Pre-eclampsia, a toxic-like condition caused by substances in the placenta infiltrating maternal blood, and premature births are not uncommon among surrogates. No one has studied the long-term effects of the massive doses of synthetic hormones that prepare surrogates’ bodies for embryo transfers. One drug, Lupron, an estrogen-suppressant used to synchronize the menstrual cycles of surrogates and egg donors, lacks FDA approval for that use; it was originally developed to treat prostate cancer in men. For all of this, first-time gestational surrogates typically get paid in today’s dollars only a little more than Mary Beth Whitehead was to receive from the Sterns in 1986.
Screening—that is, making sure that potential surrogates won’t be likely to reconsider and bolt like Mary Beth Whitehead and Crystal Kelley—is a top priority for surrogate brokers. Egg donors are typically good-looking college students selected eugenically from their photographs (the ideal: a blonde Stanford cheerleader with perfect SAT scores). But looks are irrelevant for gestational surrogates, and it turns out that the best kind of surrogate seems to be an old surrogate. No woman can be hired for surrogacy unless she has already borne at least one child of her own, proving that she’s able to do it—and also, it’s said, signaling that she knows all about the emotional attachment between a mother and baby and won’t form that kind of attachment this time around. (Surrogacy agencies encourage the woman to bond instead with the people for whom she’s carrying the infant, and some brokers set up support groups to keep her on that track.) The theory seems to be: The older the surrogate, the greater the likelihood that she will consider herself done mothering her own children and will not yearn to mother other people’s.
Women well into their 40s—a decade during which the curtain has pretty much fallen on natural childbirth and those pregnancies that do occur are deemed risky—are in high demand as surrogates. Some of them undergo surrogate pregnancy after surrogate pregnancy at a machine-like rate that would cause obstetricians to raise their eyebrows. For an upbeat article in Washingtonian magazine timed to coincide with the D.C. Council’s vote, authors Alexandra Robbins and Ali Eaves interviewed six surrogates, none under age 30. The oldest, Kathy Powers of Odenton, Maryland, was 48 and had been pregnant six times, although only twice with a child who was genetically hers. The next oldest, Susan Fuller of Reston, Virginia, was 44, with twelve pregnancies under her belt, only three of them her own. Another surrogate named Julie, age 37, was on her fourth surrogate baby, while 36-year-old Allison Wylam had borne seven children, four of them her own, and was about to embark on her eighth pregnancy and fourth surrogacy.
The chirpy Robbins-Eaves article did not reveal how much money any of these top-performers had received, but observers say that experienced surrogates can earn as much as $75,000 per pregnancy. There can nonetheless be a medical price to pay. Kathy Powers’s sixth pregnancy (achieved after two separate time-consuming transfers of frozen embryos) consisted of triplets born at 32 weeks in an emergency C‑section, and Powers had to be hospitalized twice, for two weeks before the birth and with postpartum pre-eclampsia afterwards. In her Washingtonian photo, posed with her 7-year-old son next to the obviously upmarket Jody and Kim Crane of Virginia, with their triplets and a previously adopted 9-year-old daughter, Powers looked . . . tired.
Some of the women in the Robbins-Eaves article seemed to have well-paying professions: a labor-and-delivery nurse, a nonprofit director/fitness instructor. But most women who contract to become surrogates, well, could use the extra money. Military wives are favorite targets for surrogacy recruitment, and some brokers strategically site their offices close to bases (San Diego, with at least seven bases in the vicinity, is an assisted-reproduction magnet), and they saturate the local throwaways with classified ads. Enlisted men draw meager salaries, they move around too much for their wives to hold down permanent jobs, and they are often conveniently deployed far away in Iraq and Afghanistan so they can’t pester their wives for sex during the long periods of hormone treatment before the surrogate pregnancy takes.
Best of all for the agencies and the intended parents, military insurance (a program called Tricare) almost always covers the considerable prenatal and birth-related medical expenses that a surrogate pregnancy can generate. Officially this is not supposed to happen, and there have been Defense Department calls for crackdowns, but it seems too difficult for Tricare officials to monitor the records on the 2,100 military births that occur every week. Having the surrogate’s insurance program cover medical expenses means a huge financial break for intended parents, and the Los Angeles Times reported in 2009 that one surrogacy agency near San Diego, Surrogate Alternatives Inc., was paying a $5,000 bonus to military wives who used their Tricare policies for surrogacy-related prenatal care. Not surprisingly, military wives constitute up to 19 percent of surrogate carriers, according to a Surromoms survey, even though the military accounts for only 1 percent of the U.S. population. A Newsweek article in 2008 estimated that half the surrogates in California and Texas are military spouses; both states have large numbers of bases and surrogacy-friendly legal regimes.
Another way to cut the staggering cost of a U.S. surrogacy is to outsource it to a Third World medical-tourism destination. Until very recently India was the top overseas choice: excellent hospitals and doctors, a boundless supply of impoverished, undereducated women of prime childbearing age, and a legal and social regime willing to look the other way. India-focused surrogacy agencies have mushroomed both here and in India, as has the new profession of surrogacy headhunters (“medical social workers” is their official title) paid on commission to recruit women in Mumbai slums and dusty rural villages for whom the $5,000-$8,000 standard Indian fee is a small fortune. The total cost of surrogacy in India is a bargain—$30,000 or so—although surrogate-seekers should be forewarned that the Indian government deems the gestational carrier to be the baby’s mother, and that foreign intended parents might face bureaucratic tangles as they attempt to obtain a passport for the infant. About 25,000 foreign couples have been visiting India annually for assisted-reproduction services, with about 2,000 babies born, in all a $2.5 billion industry.
American surrogates typically talk about giving the “gift of parenthood” to the childless and insist that they aren’t in the business for “dollar signs,” as one surrogate told the Los Angeles Times—although when pressed, they admit that the money comes in handy for down payments, college funds for their children, clearing credit-card debt, and sometimes just getting by. Indian surrogates, by contrast, bluntly admit that their main reason for signing up is that they and their families need the fee; indeed, some Indian wives are prodded into surrogacy by their husbands. News stories about Indian surrogates have reported scandalous living conditions, with the pregnant women locked inside crowded dormitories that they are forbidden to leave except for medical visits. (Indian agencies don’t believe in bonding between surrogates and intended parents, and besides, foreign intended parents typically limit their trips to India to picking up the baby and getting the proper exit papers.) Indian fertility clinics routinely transfer five or more embryos at a time into surrogates in order to boost their success rates (the ASRM recommends inserting no more than two), with resultant health problems for both the surrogates and the babies, not to mention the fact that Indian standard-form surrogacy contracts require “selective reduction”—a fancy term for abortion—when there are three or more fetuses. Indian surrogates are often not paid if they miscarry, and can be forced to undergo medically unnecessary C‑sections because they’re quicker than vaginal births. There have been reports of multiple frozen zygotes transferred to multiple Indian surrogate mothers simultaneously, followed by abortions if more than one pregnancy occurs.
In May 2012, a 30-year-old Indian surrogate, Premila Vaghela, the wife of a manual laborer in Ahmedabad struggling to support two children, died during her eighth month of pregnancy after collapsing with convulsions while on a routine visit to her IVF clinic. The doctors there first delivered the baby, destined for an American woman, by C‑section, and then shipped Vaghela to another hospital, where she expired. In April 2013, another Indian surrogate, Mona Qureshi, died during pregnancy while carrying a child for a Norwegian couple (commercial surrogacy is illegal in Norway). In January the Indian government issued a memo announcing its intention to bar foreign gays, foreign unmarried heterosexuals, and foreign couples married for less than two years from using Indian surrogacy services. In July the government introduced a bill setting strict age limits (21 to 35) for surrogates, allowing them to bear no more than a maximum three children, including their own, and requiring them to wait at least two years between surrogate pregnancies. No matter—Planet Hospital, a pioneering medical-tourism firm based in Calabasas, California, promptly switched its surrogacy operations from India to Thailand (where commercial surrogacy is legal) and Mexico (where it’s legal in part of the country). Scatologically denouncing “this latest crap circus . . . blazing out of the poop shoot of India” on his company’s blog, Planet Hospital CEO Rudy Rupak on February 4 unveiled a $38,000 (plus another $12,000 for the egg-donor) surrogacy package in Thailand and a $36,500 south-of-the-border package. “ ‘Cancun baby! Woohoo’ takes on a whole new meaning now, doesn’t it?” wrote a blogger on Rupak’s site.
High-end, pro-regulation surrogacy advocates such as Andrew Vorzimer shake their heads at the problematic international surrogacy scene that Rupak promotes—and also warn their intended-parent clients that there’s not much a U.S. lawyer can do if a foreign country refuses to honor a surrogacy contract and possibly leaves a baby with neither a passport nor any legally recognized parents. Yet the close involvement of lawyers in the business of even the highest-end surrogacy is troubling. Nearly all lawyers with assisted-reproduction practices—or at least nearly all well-known lawyers in that field—are principals in the surrogacy business itself on the side. Vorzimer, for example, besides practicing law, is CEO of Encino-based Egg Donation Inc., whose online roster of potential donors is especially photogenic, and is listed among the “professionals associated with” the Center for Surrogate Parenting, which shares an address with Egg Donation Inc. and is headed by Bill Handel, a Los Angeles surrogacy lawyer and radio personality (Vorzimer says he has no formal relationship with the center). The center brokered the surrogate-carried offspring of Tagg Romney and Elizabeth Banks. Steven H. Snyder, a Twin Cities-area lawyer who heads the American Bar Association (ABA)’s Reproductive and Genetic Technology Committee, operates the International Assisted Reproduction Center, a combination egg donation-surrogacy agency that shares the same office building as Snyder’s law office in Maple Grove, Minnesota. Snyder helped draft a surrogacy-legalizing bill in 2008 for Minnesota (which has no laws whatsoever on surrogacy), but the bill was vetoed by then-governor Tim Pawlenty. The New Jersey surrogacy bill that Chris Christie vetoed in August 2012 had been drafted in part by Melissa Brisman, a Montvale, New Jersey, lawyer who owns Reproductive Possibilities LLC, a surrogacy agency located down the hall from Brisman’s law office. “Surrogacy is both a medical procedure and a legal transaction, so it’s natural for lawyers to be involved,” Snyder explains in a telephone interview. But it’s also natural that if owners of surrogacy firms who also happen to be lawyers representing intended parents are in charge of drafting legislation, that legislation is likely to favor surrogacy agencies and intended parents.
Furthermore, having an attorney at the helm of a surrogacy agency is no guarantee of aboveboard conduct. In 2011 a San Diego-based reproductive lawyer, Theresa Erickson, who also owned a surrogacy/egg donation firm, Conceptual Options LLC, pleaded guilty to conspiracy to commit wire fraud in an elaborate baby-selling ring that included another lawyer, Hilary Neiman of Rockville, Maryland, and a veteran surrogate, Carla Chambers of Las Vegas. Erickson had been a respected member of the assisted-reproduction bar, regularly speaking at conferences and on television, had her own radio show, and was the author of a 2010 handbook for intended parents. According to court documents, she and the other two women (who also pleaded guilty to criminal charges) solicited surrogates online and supposedly matched them with intended parents—although in fact the intended parents didn’t exist. The surrogates were sent to Ukraine to have donated sperm and eggs implanted; no one knew where the gametes came from. (The ASRM’s ethical regulations require U.S. reproductive endocrinologists to see a signed surrogacy contract before they transfer embryos, but no such restriction exists in Ukraine, where commercial surrogacy is legal and apparently unregulated.) When the surrogates reached their 18th week of pregnancy, they were informed that the intended parents had backed out of the contracts. Erickson would then shop the babies, at least a dozen of them in total, on the Internet, charging up to $150,000 to individuals and couples eager for offspring. Afterwards Erickson would file fraudulent papers in court asserting that the purchasers of the infant had a valid pre-conception surrogacy agreement with the woman who bore them—a necessary step, because before California enacted its new surrogacy statute, a judge had to issue an order placing intended parents’ names on a birth certificate. All three women were sentenced to prison, and Erickson and Neiman were disbarred. Conceptual Options remains in business, however, although with a new CEO, Saira Jhutty, who had been one of the agency’s staff psychologists under Erickson.
While the Erickson case was pending in a San Diego federal court, a surrogate hired by an East Coast agency Neiman operated at the time—the now-defunct National Adoption and Surrogacy Center—found herself facing $217,000 in medical bills plus an uncollected $14,077 out of the $25,000 plus expenses that she said she was supposed to receive as her fee. Carrie Mathews of Windsor, Colorado, a mother of four, had signed a 30-page contract agreeing to carry a pregnancy—twins, as it turned out—for a childless Austrian couple in their fifties, Rudolf and Teresa Bako. The embryo transfer took place in Cyprus, as surrogacy contracts are illegal and unenforceable in Austria. The Bakos paid on schedule—for a while, Mathews said. Her four previous pregnancies had been easy, but this time she started experiencing daily nausea, intense swelling, pre-eclampsia, and finally, a form of anemia and elevated liver enzymes known as HELLP syndrome that necessitated physician-ordered bed rest. She delivered the twins by C-section, but her severe internal bleeding led to emergency surgery, massive blood transfusions, and a 20-day stay in the hospital. Meanwhile, the Bakos picked up the babies, took them back to Austria, and, according to Mathews, welshed on the rest of what was owed to her. The Bakos countered that they had actually overpaid Mathews, and the dispute was apparently never resolved.
Mathews’s surrogacy contract called for her own medical insurance to cover her delivery-related bills, with the overage to be paid by the intended parents. Such arrangements—pushing the burden of prenatal and childbirth coverage onto the surrogate herself—are not uncommon as a way to shave the total price for intended parents. Many health insurance policies contain explicit surrogacy exclusions. The one U.S. insurance company, New Life Agency Inc., that issues special policies for surrogacy pregnancies charges from $5,000 to $11,000, with deductibles ranging from $15,000 for the most expensive policy to $45,000 for the cheapest—and those are New Life’s lowest figures, for surrogates under age 35 who are carrying only a single fetus (the deductibles, by the way, must be deposited with New Life right after the first ultrasound and well in advance of delivery).
One alternative, if the intended parents balk at the premiums, is to lie to your regular insurance carrier, which is exactly what some surrogates say the agencies force them to do. In 2010 two California surrogates and their husbands sued yet another San Diego-area surrogacy agency, Extraordinary Conceptions, operated by reproductive lawyer Stephanie Caballero and her husband, Mario Caballero. The suits alleged that the Caballeros’ agency had failed to buy contractually promised insurance policies for the surrogates and told them to submit their medical claims directly to their own insurance companies instead. When the claims were denied, the surrogates alleged, they were hit with tens of thousands of dollars in bills, harassing day-and-night collection calls, ruined credit ratings, and diminished prospects for qualifying for insurance in the future. (Stephanie Caballero did not respond to an email I sent her regarding the litigation, and the surrogates’ lawyer, Joyce Komanapalli of Pasadena, California, declined my request for a phone interview.)
Higher-end surrogacy agencies and the lawyers who draft their contracts require intended parents to purchase adequate insurance for surrogates, no matter what the cost, protecting them from responsibility for runaway medical bills—and the pending surrogacy bill in the District of Columbia would mandate exactly that. Andrew Vorzimer, for example, has represented surrogates in helping to bring criminal prosecutions against unscrupulous brokers, including two surrogates left unpaid when SurroGenesis folded and another two surrogates who blew the whistle on Theresa Erickson. But even the most conscientiously drafted surrogacy contract typically contains provisions that would be unacceptable in any other contractual relationship. Abortion clauses for cases of fetal abnormalities are standard features of surrogacy contracts, even though “no place in the country would ever force a woman to have an abortion,” says Jack Marshall, a nonpracticing lawyer who heads ProEthics Ltd., a firm in Alexandria, Virginia, that offers continuing-education legal-ethics courses to other attorneys.
Even Tagg Romney’s surrogacy contract contained an abortion clause, although the Mormon church to which Romney belongs generally forbids elective abortions. (The Center for Surrogate Parenting’s Handel told the press that Romney had objected to the clause, but it had inadvertently ended up in the contract anyway.) And lawyers frequently play hardball with unenforceable contract clauses, as happened with Crystal Kelley. Other common and intrusive—and possibly unenforceable—clauses in surrogacy contracts restrict the surrogate’s coffee consumption, bar her from eating meat if the intended parents are vegetarians, set limits on how much weight she can gain, disallow travel during the third trimester of pregnancy lest she give birth in a state where surrogacy is illegal, and, if she is a military wife, forbid her to have sex with her husband when he returns from an overseas deployment, on the theory that he might have contracted a sexually transmitted disease.
Furthermore, there is a conflict-of-interest gray area when intended parents who are the clients of a lawyer who owns a surrogacy agency, and the surrogate, who may mistakenly believe that the lawyer is looking out for her interests as well, enter into a contract with that surrogacy agency, whose main purpose is to generate an often hefty profit for its lawyer-owner. The ABA’s ethics rules allow such arrangements as long as there is full disclosure, and some surrogacy lawyers who own agencies say they don’t personally perform the legal work but delegate it instead to other attorneys in their office—which may or may not solve the underlying ethical problems. Marshall maintains that commercial surrogacy is a “minefield of what I call pre-unethical conditions—you have to watch out for them, or you can end up in a legal and ethical morass,” of which the Crystal Kelley case was a prime example. “They’re just landmines,” says Marshall of commercial surrogacy arrangements, and rather than expect state legislatures to try to deal with them, Marshall believes they should simply be banned.
The most troubling aspect of lawyer/agency owners’ involvement with legalizing and regulating gestational surrogacy is their insistence that the surrogate’s agreement to hand over the baby to the intended parents be irrevocable. When the D.C. Council’s judiciary and public safety committee held hearings on the District’s proposed surrogacy bill on June 30, Nancy Polikoff, a law professor at American University who is active in gay-rights causes, urged the council to include in the bill a provision giving a surrogate a brief period after the baby’s birth to change her mind about relinquishing it. Polikoff’s hope was to create a climate more friendly to gay male couples who were not well-off and who might want to engage a less expensive traditional surrogate who as biological mother might have a recognizable maternal claim to the baby. A provision in the Uniform Parentage Act, a model law drafted by the Uniform Law Commission in 2000, would give gestational surrogates the right to terminate a surrogacy contract and would require that surrogacy contracts be approved by courts along lines similar to an adoption proceeding. So far it seems that only two states, New Mexico and West Virginia, have enacted that provision. The ABA issued its own model law in 2008 that would require court approval of the contract if neither intended parent was genetically related to the infant, and a mental-health evaluation of the intended parents plus full insurance coverage for the surrogate if one or both intended parents had a genetic link. No state has enacted the ABA’s model law.
Surrogacy advocates argue: Why should intended parents have to undergo court approval, a mental-health study, or any kind of third-party screening in order to have a baby when natural parents don’t? The ASRM argues that its own ethical rules for reproductive endocrinologists suffice to protect all the involved parties. “We think the underlying medical procedures are already well regulated,” ASRM spokesman Sean Tipton wrote in an email to me. “We favor people having the right to make their own decisions about reproduction and would oppose measures which attempt to impose the state into that decision,” Tipton wrote.
The response of surrogacy lawyers to the idea of giving a surrogate the same right to change her mind as a biological mother giving up her infant for adoption is: It’s not her baby. They compare a gestational surrogate to a nanny who might also become attached to a child for whom she is caring but who certainly has no right to keep it permanently. “She’s merely providing a service,” says the ABA’s reproductive-technology chairman Steven Snyder of surrogates. “There’s no logical ground on which to say a gestational carrier should have the rights of a mother. And there’s a principle of contract law called promissory estoppel, in which if people reasonably rely on a promise, it’s enforceable.” Both Snyder and Vorzimer raise the specter of a surrogate using her right to change her mind to blackmail the intended parents for, say, vastly more money, in return for handing over the infant.
It’s certainly true that America isn’t India. Surromomsonline.com and similar websites are plastered with classified ads placed by would-be surrogates seeking to carry other people’s children for them, and in some cases to sell their breast-milk from the pregnancy as well. For those women obviously, $20,000—or better yet, $40,000 or $75,000—is real money. A woman who has already carried eight babies via surrogacy isn’t likely to be fazed by months’ worth of discomfort, the risk of pre-eclampsia, a scar-producing C‑section, a possible lengthy stay in a hospital, or the still-speculative long-term effects of massive infusions of synthetic hormones. Still, there is something disconcerting about the class divide between a group of women for whom a few tens of thousands of dollars means everything, and a group of people of both sexes for whom $150,000 or $200,000 is . . . cash on hand. You don’t see the Yale-educated wives of private-equity partners advertising their gestational services on Surromoms. Furthermore, nannies are always free to quit their jobs, whereas pregnant surrogates can’t escape from their contracts unless they die, miscarry, visit an abortion clinic, or move like Crystal Kelley to a jurisdiction that won’t enforce the agreement. And if they do try to escape, they—again unlike nannies who quit—are likely to be sued by the intended parents.
Finally, you have to wonder whether the difference between Theresa Erickson’s Ukraine-based baby-selling ring and ordinary U.S.-based surrogacy, in which the baby is ordered up in advance for the same amount of money, isn’t one of degree rather than kind. Isn’t it essentially the difference between buying a suit of clothes off the rack and having a tailor make one for you bespoke? In both cases, yes, there are people of fine character who yearn for children—but is that a sufficient reason to create custom-designed children for them in an IVF clinic?
Right now, and perhaps surprisingly given the support for it among the elite who shape public opinion, the law disfavors paid surrogacy. It is illegal in most of the world, with Georgia, India (under now-limited circumstances), Israel, Thailand, and Ukraine among a handful of exceptions.
In New Jersey, with Christie’s recent veto of the legislature’s surrogacy bill, the Baby M. decision still seems to be good law 25 years later. Indeed, a New Jersey lower court in 2009 held that the Baby M. ruling covered gestational as well as traditional surrogacy. The court refused to enforce a 2006 arrangement in which 43-year-old Angelia Gail Robinson signed a form contract drafted by surrogacy lawyer Melissa Brisman to carry a pregnancy for her gay brother and his partner, using the partner’s sperm and eggs from an anonymous donor. The contract included a waiver of independent counsel for Robinson. She ended up carrying twin girls, and it was the kind of pregnancy that seems not uncommon when an older woman and embryo transfer are combined: severe pre-eclampsia, a seizure that led to a coma, and an emergency C‑section.
During the pregnancy Robinson and her brother had a falling out, and Robinson, who had bonded with the twins while carrying them, filed suit seeking to be declared the girls’ legal mother. New Jersey Superior Court judge Francis B. Schultz duly issued an order voiding not only the surrogacy contract but a Brisman-drafted “consent to adoption” by Robinson’s brother that she had believed herself obligated to sign. Robinson was awarded joint custody of the girls with her brother’s partner—although later quarrels between the two over the children’s upbringing resulted in the partner gaining sole custody with visitation rights by Robinson. It was another case, like Mary Beth Whitehead’s, of winning the war but losing the battle.
And Robinson and other surrogates came within a hair’s breadth of losing the war as well. The Brisman-drafted surrogacy bill that would have nullified the “A.G.R.” decision, as it was called, sailed through the New Jersey state legislature. It would have eliminated any waiting period for the intended parents of a surrogate-born infant to be listed as its parents on the birth certificate and required the surrogate to surrender custody of the baby to the intended parents immediately after the child was born. Christie vetoed the bill only after intense lobbying by some pro-choice feminist leaders, including Chesler, and New Jersey Right to Life. In his veto speech on August 8, 2012, Christie pointed out that in gestational surrogacies children “are linked to their parents” only “by contract,” and that the legislature needed to study further the “profound change in the traditional beginnings of the family” that the bill would have ratified.
Christie’s action—and those of Jindal in Louisiana and Pawlenty in Minnesota—may turn out to be only a delaying tactic. Widespread societal acceptance of surrogacy may be inevitable, prompted by the buzz surrounding the celebrities who proudly show off their surrogate-born offspring, pressure from the well-off clients and lawyers in the surrogacy business, and the fact that gays, not working-class women, are currently the prime objects of solicitude among liberals.
“No one cares about those women” who become surrogates and then find themselves caught in an arrangement they don’t want, says Harold J. Cassidy, a lawyer in Middletown, New Jersey, who represented both Mary Beth Whitehead and Angelia Robinson. “Most of them don’t have lawyers to speak of until after the deal is done. We are deliberately creating a breeding class of women and a class of children intended to be motherless.”
Charlotte Allen, a frequent contributor to The Weekly Standard, last wrote on chivalry.
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