Paid surrogacy triggers debate about legal, moral issues

By Gina Barton of the Journal Sentinel
jsonline.com, August 8, 2012

For women in India, serving as a surrogate can be the difference between poverty and the chance for a better life.

Since it became legal in 2002, paid surrogacy has become a $2.3 billion annual industry in India. Women who carry a foreign couple’s child can make up to $8,000 – far beyond the average annual income.

Reports of desperately poor women serving as paid surrogates without understanding the medical risks and potential social stigma have led most American medical ethicists to agree that the practice in India is exploitative.

Whether the same is true in the United States is another question.

“No one has really argued out the ethics of what we’re talking about,” said Arthur Caplan, professor of medical ethics and health policy at the University of Pennsylvania. “The field of surrogacy has just evolved as a business, and the law tries to use the tools of business to manage surrogacy.”

Those in favor argue that surrogates provide a service and should be compensated for their efforts. Limiting their ranks to middle-class women who have been educated about the process and pass background checks can guard against problems, proponents say. Those against paid surrogacy contend that it turns women’s bodies and babies into commodities.

Paid surrogacy is legal in some states, banned in others. Where it is allowed, payments range from about $18,000 to $30,000.

Most agencies and attorneys who match surrogates with those who want a baby conduct thorough background checks, which include psychological and financial screenings.

Attorney Lynn Bodi, co-owner of The Surrogacy Center in Madison, said the agency will not work with women who have major financial problems.

“I don’t want them to have that pressure on them,” she said

Melissa Brisman, an attorney who runs Reproductive Possibilities, a New Jersey agency, said it’s OK for a surrogate to be partially motivated by money, but that shouldn’t be her main reason for doing it.

Most of the money is not paid until the surrogate becomes pregnant, and that doesn’t always happen, Brisman said.

“This isn’t a way to make quick cash,” she said.

Steven Snyder, a Minnesota lawyer who serves as chair of the American Bar Association’s Assisted Reproductive Technologies Committee, said women in poverty generally cannot enter a paid surrogacy agreement without jeopardizing their welfare benefits. In this country, most surrogates have careers or are stay-at-home moms who want to supplement their husbands’ salaries, he said.

Surrogates, like child care providers, are providing a service some parents need and should be compensated, he said.

“She takes time away from her own family and her own children, and goes through the risks and physical difficulty of delivering a child,” he said. “She’s undertaking various risks for your benefit, but you’re not going to pay her?”

Joseph Backholm, who fought a law permitting paid surrogacy in Washington state, said that argument doesn’t hold water.

“You have created a financial incentive for someone to give you a child,” he said. “However you look at it, in the event of a conflict, you would still be making the argument that the child is mine by virtue of the contract and the money I gave for it.”

Determining what happens to children based on a contract rather than what is in their best interests is wrong, said Backholm, executive director of the Family Policy Institute of Washington.

Unpaid surrogacy is allowed in Backholm’s state, and he has no problem with a relative or friend carrying a child for someone who can’t, he said. The provision permitting paid surrogacy in Washington was stripped out of a larger bill last year.

“We’re a civilization that doesn’t sell people, and that’s exactly what that would have been doing,” he said.

Julaine K. Appling, director of Wisconsin Family Action, agreed.

“Children are not commodities. They are not bargaining chips or bartering points,” said Appling, whose grass-roots group promotes traditional families. “They have souls and lives and talents and gifts, and they need the very best.”

There is no way to know how many negative consequences may result when women make money serving as surrogates, she said. She is equally troubled by third parties profiting from matching surrogates with couples.

“The minute someone is trying to make a buck by offering their womb for rent, they’re opening the floodgates for potential problems,” she said.

Bonnie Steinbock, a philosophy professor at University at Albany, State University of New York, suggests the ethical problems could be mitigated by treating surrogacy as prenatal adoption. In adoption cases, parents often pay the birth mother’s medical bills and living expenses, she said.

Payments to surrogates should be similar, she said.

“It should be kept low enough that it’s not simply a financial transaction,” she said. “If you’re being compensated for your time, risk and burden, it’s not selling the baby any more than it’s selling the baby in adoption.”