This is the first story in a series on surrogacy, which a Minnesota Legislature commission is studying as it prepares to make public policy recommendations on the practice.
By Bridget Ryder
Feminists, children of surrogate mothers and biomedical ethicists united to send a clear message to a Minnesota state legislative commission studying surrogacy: The practice turns people into products.
In a July 19 hearing that focused on the possible health and psychological effects on surrogate mothers and children born of surrogacy, the commission also raised the question of abortion. For surrogacy opponents, abortion’s role in surrogacy contracts highlights how this form of third-party reproduction commodifies women and children.
“The foremost goal of public policy should be to protect vulnerable people from exploitation and commercial commodification. Above all, that’s what we hope this commission will do.
We do not create public policy that assumes best-case scenarios. Rather, we need public policy in Minnesota that protects people against worst-case scenarios,” said Kathryn Mollen, policy and outreach coordinator for the Minnesota Catholic Conference.
MCC supported legislation that was passed earlier this year to establish the Legislative Commission on Surrogacy, which is charged with developing public policy recommendations on surrogacy — when a woman contracts to become pregnant and gestate a child to be raised by someone else. Minnesota law currently does not recognize surrogacy, meaning current in-state arrangements navigate a tenuous landscape.
Composed of state lawmakers and representatives from the state’s Department of Health, Department of Human Services and State Supreme Court, the 15-member commission is holding a series of meetings over the next several months and will submit a report on its findings to the Legislature by Dec. 15.
In July, commission members wanted to know whether surrogacy contracts could potentially force a woman to have an abortion, if, for example, the baby had a chromosomal disorder, or the surrogate had conceived multiples when the intended parents had expected a singleton. The answer from Steve Snyder, a surrogacy attorney and surrogacy agency owner, left the question up in the air.
He insisted that a surrogacy contract could not infringe on a woman’s “right to choose,” but could merely obligate her to “consult” with the intended parents. Nevertheless, he said, if a surrogate refuses to abort, she could be considered in breach of contract, in which case, “she would then be leveraging it into her pregnancy.” The intended parents who had commissioned the pregnancy and the child would then not be obligated to support the surrogate mother and the child.
Abortion ‘a way of returning the product’
Navigating the surrogacy web of rights, responsibilities, abortion, and wanted or unwanted children has proven more difficult than parsing out the terms of a contract. Matthew Eppinette, executive director of the California-based Center for Bioethics and Culture who wrote the 2014 documentary “Breeders: A Subclass of Women?” laid before the commission the stories of the four surrogate mothers chronicled in the film.
One of those women was Heather, a three-time surrogate mother. The last couple she bore a child for wanted her to abort because the doctors had detected a birth defect. After consideration and consultation with a specialist, Heather decided she “couldn’t play God” and declined. The couple then said they didn’t want the child and distanced themselves from her. On her own, Heather found an adoptive family for the baby, but when she informed the intended parents, they changed their minds again, deciding they actually wanted the baby.
In the film, Heather described how at the birth the baby boy whose life she had fought for was taken away from her so quickly that she had to beg for a glance at him. She hasn’t heard from the family since.
For surrogacy opponents such as Eppinette, situations like these highlight how surrogacy treats women and children like a commodity, a product that can be bought and sold, taken or cast off by means of contracts and money.
Alana Newman, the daughter of an anonymous sperm donor, agrees. “Abortion is a way of returning the product,” she told the commission.
Third-party reproduction, also known as donor-assisted reproduction, refers to any form of reproduction that uses donor sperm, eggs or womb for bringing a baby into being.
Though sold as the cure for infertility, the selfless service of one woman to a family in need, and just another method of “family building,” the commercial nature of third-party reproduction is always lingering in the background. In a 2008 New York Times article “Her Body, My Baby,” Alex Kuczynski recounted her own struggle with infertility and eventually engaging a surrogate mother to have a child.
“While no one volunteering to have our baby was poor, neither were they rich,” Kuczynski wrote. “The $25,000 we would pay would make a significant difference in their lives. Still, in our experience with the surrogacy industry, no one lingered on the topic of money. We encountered the wink-nod rule: Surrogates would never say they were motivated to carry a child for another couple just for money; they were all motivated by altruism. This gentle hypocrisy allows surrogacy to take place. Without it, both sides would have to acknowledge the deep cultural revulsion against attaching a dollar figure to the creation of a human life.”
For many children born through these measures, the revolt against the contractual nature and the exchange of money at the origin of their existence is not cultural but personal.
“When you know that a huge part of the reason that you came into the world was due solely to a paycheck and that after that you are disposable, given away and never thought of again, it impacts how you view yourself. As a product of surrogacy, when I express this viewpoint to others, I am told, ‘Look how much your parents wanted you and saved to have you. You should be grateful and thankful for them.’ But at the end of the day, the adults were looking out for themselves, and what they needed and wanted,” Jessica Stern, a 33-year-old born via surrogacy, stated in a written testimony to the commission. She writes about her struggle and third-party reproduction at her blog, “I Am a Product of Surrogacy.”
Stern was genetically related to her surrogate mother — what the industry calls “traditional surrogacy.” With improvements to in vitro fertilization, “gestational surrogacy” has become the norm. In this method, the surrogate is not genetically related to the child. Instead, the intended mother may be the genetic mother of the child — if her egg was used for fertilization — or the arrangement can be more complicated. If a donor egg is used, the child may not have a genetic relation to its birth mother nor its intended mother. If the intended parents are a same-sex couple, the child will necessarily lose a genetic connection.
But, experts say, no matter the gene pool or the contract, the child in the womb knows only one mother: the woman who is carrying him or her.
Nancy Verrier, whose 1993 book “The Primal Wound” has become widely read in the adoption field, identified the loss that even infants experience when separated from their birth mothers.
“The child is primed to be welcomed into the world, protected, and nurtured by this mother with whom he has been physically, emotionally and spiritually connected for nine months. Every sensory aspect of the child expects her, knows her, wants her. Therefore, when an infant is whisked away and placed in a nursery away from mom and then placed in the arms of another woman, it is disorienting, confusing and terrifying,” she wrote in another essay.
Tanya Prashad, a Minnesota surrogate mother also featured in “Breeders” who is now in a custody battle for a daughter she bore as a surrogate, described in the film how, after she gave the girl to the intended fathers, the baby became colicky, crying almost constantly. However, when she would visit as they had initially agreed, the child would quiet as soon as it was placed in her arms.
Neonatal and neurological research has also well documented the innate mother-child bond that forms even in utero. Surrogacy necessarily breaks that bond, even before birth, since surrogates are encouraged to remain emotionally detached from the child because it is not their baby.
In written testimony provided to the commission, Dr. Matthew Anderson, a physician at the AALFA Family Clinic in White Bear Lake, Minnesota, described the behavior of a surrogate mother he cared for. When she developed a condition that could lead to early delivery and health complications for the baby, she refused to follow Anderson’s orders to decrease activity and quit work to bring the baby as close to term as possible. Her non-compliance led to an early delivery.
Even under the best of circumstances, children of surrogacy have greater risks for health complications. A 2002 study in the New England Journal of Medicine showed that children born through assisted reproduction were more likely to have low or very low birth weights. Studies in several American journals have also shown that children conceived though IVF are more likely to have fetal abnormalities.
Surrogacy opponents say children are the forgotten victims of third-party reproduction arrangements, including surrogacy. One of the first films produced by the Center for Bioethics and Culture focused on children of anonymous sperm donors. CBC president and film producer Jennifer Lahl considers the film, “Anonymous Father’s Day,” her favorite of the four she’s made, but says it’s the least favorite among audiences. In screenings across the country — and even among conservative, Catholic, pro-life viewers — “audiences don’t sympathize with the children,” she said.
These children, however, have another, and seemingly unlikely, ally: Kathleen Sloan, the self-identified pro-choice and feminist executive director of the Connecticut chapter of the National Organization for Women and former program manager for the Massachusetts-based Council for Responsible Genetics. Sloan has worked closely on the issue of surrogacy with Lahl, a pro-life Christian, as well as the MCC, which is part of the local coalition Minnesotans for Surrogacy Awareness.
Sloan, who also testified before the commission, sees surrogacy as violating a myriad of human rights.
“It is children intentionally severed from genetic and biological sources of identity, human rights be damned. In essence, it is the ultimate manifestation of the neo-liberal project of capitalist commodification of all life to create profit and fulfill the narcissistic desires of an entitled elite,” she told state lawmakers.
This intentional severing gets to the heart of the objection to third-party reproduction by many children born of it.
“When we have children in this world who already need homes, why are we intentionally creating children to go through adoption traumas?” asked Stern, the 33-year-old born of traditional surrogacy, in her written testimony to the commission.
Kathleen Ruby, whose search for her genetic father, an anonymous sperm donor, has been featured on WYNC Studios’ Radiolab, also writes on her blog “Child of a Stranger,” “Long before we were born, our parents, clinic and donor made a decision on our behalf that we would never be allowed to know half of our genetic family. We are a product of this contract, yet we had no voice or ability to advocate for our own needs.”
It can be difficult for children of surrogates to find their voice, Lahl said. They are raised with the narrative of being the “wanted child,” a “narrative that doesn’t allow them to speak out.”
Speaking out has had negative consequences for some. Stern and Newman’s activism has strained their relationships with their families. Children raised by same-sex couples have the added pressure of being the face of the new American family, Lahl added.
Some children’s deep loyalty to the circumstances of their birth were on display at the commission hearing, where only children of same-sex couples testified in favor of surrogacy.
Malina Samard-Halm, 20, born of a surrogate mother for her two fathers in Santa Fe, New Mexico, urged the commission to liberalize regulations around surrogacy for the sake of her self-worth and status in society.
“More legal obstacles broadcast to the world that children like me are second-class citizens, we’re unhealthy, and we shouldn’t exist” she said. “Any ruling on surrogacy is also a ruling on my worth and my family’s worth.”
In Newman’s testimony before the commission, however, she challenged the idea of a link between self-worth and surrogacy affirmation.
“There is a false dichotomy that if you are against the way you were created you are against your own existence,” she said. “My existence is not a problem. The obliteration of my father is a problem. I assume it’s the same for the obliteration of the mother in surrogacy.”
Former surrogates have also recognized the problem of downplaying the children’s best interest.
“I felt like someone that sold my child. When she was right there in my arms, all those little pieces of paper that we signed kind of just fell away,” Prashad, the Minnesota surrogate now fighting for custody of her daughter, said in an interview with ABC News in 2014. “I never for a second thought about what was right for her and what she deserved.”
Follow the Legislative Commission on Surrogacy’s work at www.lcc.leg.mn/lcs.