Browsing The Northern Cross

Kathryn Mollen: Push for surrogacy laws calls for legislative study

In 2014, the Minnesota Catholic Conference worked tirelessly to successfully stop problematic legislation that would have legitimized commercial surrogacy contracts, which are currently not recognized under Minnesota law.

This session, MCC is advocating for legislation that would establish a legislative commission to study the issues and concerns associated with surrogacy arrangements, including how to ensure that we protect vulnerable women and children from potential exploitation and commodification.

Kathryn Mollen
Kathryn Mollen
Faith in the Public Arena

Surrogacy is the process in which an individual or couple, who often cannot have a biological child of their own, pays a fee to a woman in exchange for her carrying and delivering a baby. At birth, the child is turned over to the “intended parent(s).”

The commercial surrogacy industry capitalizes on the desire of well-meaning intended parents yearning to have a biological child of their own. Good intentions, however, can lead to unintended consequences.

Hagar as the Biblical model of a ‘womb for rent’

Couples struggling with fertility have used surrogacy-like arrangements to solve infertility issues for centuries — going all the way back to the Old Testament story of Abraham and Sarah. Sarah was barren, so she gave her slave girl, Hagar, to Abraham in order to conceive a child (Genesis 16:1-3). Upon birth, the child would legally be considered Sarah’s and, therefore, Abraham’s heir.

Hagar’s story did not, however, end happily when she gave birth to Ishmael. After Sarah conceived her own child, she turned from both Hagar and Ishmael. Ultimately, Hagar was misused, her child was pushed aside by Sarah, and she and Ishmael were forced to flee into the wilderness (Genesis 21:9-13).

Most people object to Sarah’s use of Hagar as a reproductive slave, but they may overlook the similarities of Hagar’s story to that of some modern surrogacy arrangements. Many of us can relate to Sarah’s pain, because she experienced the loss and sadness of childlessness that so many women experience today. Yet should our compassion for Sarah justify the commodification and exploitation of Hagar?

Compassion does not justify commodification

Surrogacy arrangements that seek to overcome infertility by “renting” out a womb can create a host of problems.

Foremost may be the issue of unequal buyer-seller arrangements between the surrogate mother and intended parents. These arrangements can favor the preferences of the often more affluent “buyer” over the needs of the pregnant surrogate mother, making her vulnerable to inadequate informed consent, coercive situations and inadequate health care coverage.

For example, in 2013, a Connecticut woman agreed to carry a baby for an infertile couple and signed a contract at the onset of the pregnancy that included an abortion provision, which gave the couple the option to terminate the pregnancy at any point they chose in exchange for $1,000.

When the baby showed prenatal signs of birth defects, the couple chose to exercise the abortion option. The surrogate mother, although she had signed a contract and was in desperate need of the money, refused to follow through. When the couple offered her $10,000 to abort and sent lawyers after her to abide by the contractual terms, she moved to another state in order to give birth to the baby and place her up for adoption.

The unintended, disastrous consequences of surrogacy arrangements often surface when one party changes their mind. A couple decides they want a surrogate to abort the baby because they no longer want the child, or a surrogate mother begins to agonize about giving up a child as she begins to bond with the child in utero.

These situations have led the commercial surrogacy industry in the U.S. to push for state legislation that helps them legitimize surrogacy contracts — contracts that protect their client’s “investment” and do what was, historically, unthinkable in our legal system: buy and sell a baby.

Protecting women, avoiding ‘reproductive tourism’

Currently, Minnesota law — similar to the law of many other states — does not recognize the validity of commercial surrogacy contracts.

States that have passed legislation to legalize surrogacy contracts, such as Illinois and California, have seen the number of surrogacy arrangements increase significantly. In these states, the industry is setting up brokerage firms that are attracting larger crowds of international and national “reproductive tourists.”

Minnesota needs to take a more serious, in-depth look at the many concerns associated with surrogacy contracts before we create laws that legalize commercial surrogacy agreements and, in doing so, create an incentive for the practice of surrogacy to expand and grow in Minnesota.

Forming a legislative commission to study surrogacy is one of the best ways to help ensure Minnesota is protecting vulnerable women and children from the unintended consequences of surrogacy arrangements.

Kathryn Mollen is the policy and outreach coordinator of the Minnesota Catholic Conference.