The Surrogacy Culture Wars

May 1, 2010 § Leave a comment

Renee Sanchez is going to have Daniel Garcia’s baby. This would not be out of the ordinary if it weren’t for the fact that Renee is not the mother, she and Daniel are not a couple, and Daniel happens to be gay.

Daniel and his partner, Brent Sikkema, hired Renee as a surrogate mother. The embryos implanted in Renee’s uterus were created with Daniel’s sperm and eggs from an anonymous donor. The transfer took place in New York on April 19, and Renee discovered that she was pregnant with the couple’s child nine days later.

As a certified nursing assistant (CNA), Renee was working mostly with hospice cases, helping people “die with dignity” before she decided to become a surrogate. “My last two patients died within three months of each other,” she says. “I didn’t want to do that kind of work anymore.”

She started researching surrogacy when she saw a pop-up about it on her computer, and after finding more information online, she joined a surrogacy agency that would help connect her with prospective parents. “This is another way that I can help people, and I can bring a life into this world,” she says.

She met Daniel and Brent in person for the first time when she went to New York at the end of January. The two fathers want to be as involved as possible in the pregnancy, but distance is an obstacle: while Daniel and Brent live in Chelsea, Renee lives a long plane ride away in northern California.

She says that she immediately felt comfortable with Daniel and Brent and they felt that the relationship was a natural fit, but there was another, more practical reason for their decision to choose Renee. Surrogacy contracts are unenforceable by law in New York, which means that the intended parents have no legal rights regarding the child, and there is no binding agreement that forces the surrogate to hand the child over to them. The laws in California are much more accepting of surrogacy contracts.

Renee has few qualms about undertaking the responsibility of carrying another couple’s child. What might be a major internal struggle for some is simple to her. When she told her friends about what she was doing, some of them were shocked. “How could you give up your child?” they asked. “But this isn’t my child,” Renee says. “It has none of my DNA, so I’m just the oven.”

There is a phrase common among surrogates that Renee used to describe herself: “just the oven.” The phrase recurs throughout Blogger and WordPress blogs, as well as on infertility forums with subforums on surrogacy. Traditional surrogacy is rare now, and so gestational surrogates write most of these blogs. They explain that a fertilized embryo, containing none of their DNA, has been implanted in their uterus to “cook” for nine months.

This playful wording puts a lighthearted spin on a dense and complicated topic. The traditional nuclear family is made of three parts: mother, father, and baby. Adding other players into the mix automatically changes the familiar model into something strange and new.

“There’s still only supposed to be one mother,” says Susan Rogers, Director of Graduate Studies in the Department of Anthropology at New York University. “We conceptualize the mother as the egg, the one who carries the baby, and the one who had sex with the father. Gestational surrogacy breaks that unity up into two and sometimes three pieces.”

Surrogacy has become a legal and ethical minefield in the United States, challenging the conventional family by changing the definitions of motherhood and parenthood. Scientific technologies have allowed women to have children in unconventional ways since the late 1970s, and have been causing controversies since then. In-vitro fertilization is the process through which sperm fertilizes eggs cell to create embryos outside the womb. The embryos are then implanted into a woman’s uterus. It changed the way people thought about infertility and women who were otherwise unable to get pregnant had another option, aided by science.

After Louise Brown, the first “test tube baby” was born in 1978, many people were anxious about the misuse of such technology. According to Ben Sachs, a professor of bioethics at New York University, there were legitimate concerns about the commodification of children. There are still objections to IVF today on the grounds that the destruction of the leftover human embryos is unethical, and some are afraid of the possible eugenic implications that come with this evolving technology. Nevertheless, IVF has become a commonly accepted reproductive technology that barely existed thirty years ago, but surrogacy is now raising many of the same ethical questions that IVF raised then about the possible misuse of technology to circumvent nature.

With this relatively new practice, it is now possible for a child to have up to six different parents: the egg donor, the sperm donor, surrogate mother, the surrogate’s husband, and the intended parents, a heterosexual or homosexual couple (or a single parent). Circumstances change depending on the situation, and in many cases the sperm donor and intended father are one in the same. But the addition of people beyond the conventional man-and-woman model raises questions for bioethicists, religious believers and feminists alike.

The practice of surrogacy, in a very basic form, has been traced as far back as the Bible. One understanding of chapter 16 in the Book of Genesis says that Sarah interprets the fact that she has not been pregnant as a sign that God does not want her to carry Abraham’s child. She offers her servant, Hagar, to Abraham so that she can have his child instead.

In more recent practice, surrogacy can be either traditional or gestational. Traditional surrogacy requires that the surrogate provide the egg for the pregnancy, meaning that the child will be genetically related to her. The sperm may come from either an anonymous donor or the intended father. In gestational surrogacy, the surrogate is not genetically related to the child. The egg comes from either the intended mother or an anonymous donor. This form of surrogacy is more common now because of the legal complications of traditional surrogacy.

There are many reasons that a couple or individual might decide to hire a surrogate mother. One reason is simply that other infertility treatments, such as IVF and intrauterine insemination (IUI), haven’t worked. There are other situations in which a woman knows that she can’t get pregnant because of a pre-existing medical condition or because she has undergone a medical procedure such as chemotherapy that has rendered her infertile or otherwise unable to carry a child to term. Another common reason is that a gay couple wants to have a child of their own, which they would be unable to do without the help of a surrogate mother.

Attorney Noel Keane and physician Warren J. Ringold defined surrogacy as a legal concept in the United States in 1976 when Keane negotiated and drafted a contract between a married couple and a surrogate mother. In 1985, he negotiated the contract between Elizabeth and William Stern and surrogate Mary Beth Whitehead. Once Whitehead gave birth to the child, she reneged on her contract and wanted to keep the baby, who became known as Baby M.

The surrogacy was performed through intrauterine insemination using Stern’s sperm, making it a traditional surrogacy. Not long after Whitehead transferred custody to the Sterns after the baby was born, she demanded that they return the baby to her and threatened suicide. In 1987, the Superior Court judge awarded custody to the intended parents but in the next year, the Supreme Court of New Jersey remanded the case to family court. The lower court gave custody to the Sterns, but granted Whitehead visitation rights. This decision specifically addressed the issue of traditional surrogacy, where the surrogate is genetically related to the child, but left open the issue of gestational surrogacy, where the surrogate is not related to the child.

The case of Johnson v. Calvert decided in California in 1993 is one of the main legal precedents in current surrogacy law. In this case, the gestational surrogate tried to claim custody over the child, despite a contract that had been put in place before the pregnancy. The court determined that there were two ways to prove maternity: a woman could prove that she had given birth to the child, or she could prove genetic consanguinity through a blood test. Since both the surrogate and the intended mother fit into one of these definitions of maternity, the court decided that the intended mother should be the child’s legal mother. The reason given was that she was the person who had intended to raise the child in the first place.

After three easy pregnancies with two boys and a girl, Lura Stiller of Dallas, Texas decided that she didn’t want any more children of her own. But she loved being pregnant, and when she heard about surrogacy from an old friend at her ten-year high school reunion, she wanted to learn more.

“I was thrilled to find a way to help couples become parents,” she says. “I gave up a little girl for adoption when I was younger and the parents were in the delivery room with me. I remember the look on their faces when I handed them their daughter—that look of utter joy, the look of complete love for another being and I helped them find that.  I knew I had to experience that again.”

Lura was in the army for eight years after she graduated high school and now works as a loan advisor. Since settling back in Texas to be close to her family, she has completed three surrogacies for two different couples. Her first was for a heterosexual couple that an agency matched her with, and despite being very unhappy with the experience because of the intended mother’s cold demeanor towards her, she decided to try again and was matched with a gay couple.

She went into her first surrogacy with a contract full of holes and the agency failed to match her with a couple that shared her beliefs. The relationship between her and the parents was cold and professional. “They completely cut off ties with me even at the hospital,” she says. “I never felt that they appreciated everything that I did. I wouldn’t say I mourned giving the child up, but I mourned the relationship between me and the parents.”

Her second and third surrogacies with the gay couple were much more satisfying. She is still friends with them and the children know who she is. Despite her complex role in their family, she naturally embraces the relationship, and the children simply call her Auntie Lura.

“The first child made the connection with her friends at school that they came from their mommy’s belly so she thought that I must be her mommy, and her dads had to correct her,” she says. “They didn’t over think it. If you try to get into the specifics it’s going to be over their heads, so they explained it very simply. The easiest way to break it down was auntie.”

The laws on surrogacy are complex and confusing, varying from state to state. Unfortunately for Daniel and Brent, New York is one of the states that prohibit couples and individuals from entering surrogacy contracts, essentially banning the practice. But California is one of six states that allows surrogacy, which means that Daniel and Brent will be able to put their names on the birth certificate once the baby is born.

According to Human Rights Campaign, an advocacy group and political action committee for the LGBT community, six states, including California, allow individuals and couples to enter surrogacy contracts. The District of Columbia and eleven states, including New York, prohibit surrogacy agreements in some or all cases. The remaining states have unclear laws, or have no specific legislation on the books concerning surrogacy at all.

Regardless of whether or not the surrogacy is gestational or traditional, the agreements are put in place to prevent disputes about the legal rights of the intended parents and state that the surrogate has no legal rights or obligations concerning the child.

The state of California does not have any statute specifically addressing surrogacy, but it accepts contracts and would uphold agreements involving LGBT individuals. It is considered one of the most accessible states for gay couples planning to hire a surrogate.

New York State is on the other side of the spectrum completely: surrogacy contracts are void and unenforceable by law, and a ban was placed on entering surrogacy agreements in 1992, with the state declaring them contrary to public policy. The reason given was that the surrogate’s choice to relinquish the child to the intended parents could not be completely voluntary because of the financial incentive.

Like Renee, many surrogates prefer gestational surrogacy to traditional, using donor eggs instead of their own. More women are willing to donate eggs than are willing to be traditional surrogates, meaning that the eggs are available and the surrogates are more willing to carry a child not genetically related to themselves.

Google searches of “how to find a surrogate” and “how to be a surrogate” produce surprisingly similar results. The website eHow.com posts the process for both in lists of simple steps, complete with a list of “things you’ll need” (a computer with internet access, a contract, and an attorney, or for prospective surrogates, a body in good physical condition) and difficulty level (moderately challenging).

Despite this simplistic presentation, the process for both parties involved can be daunting. Intended parents (often known as IPs, or IFs and IMs for intended mothers and fathers) first have to consider the legality of surrogacy in their state, which determines whether they will be able to find a surrogate locally.

“That’s one hurdle that couples have to deal with [in New York], so they have to go somewhere else to do it,” says Terry Boggis, the director of Public Policy at the LGBT Community Center in New York. “But that’s not a big deal, because it’s really quite accessible in the surrounding states, like Connecticut, Rhode Island, and Massachusetts.” The main obstacle for most couples is financial, she says.

According to John Weltman, the founder and president of Circle Surrogacy in Boston and the father of two children born from a traditional surrogate, adoption is still more common than surrogacy, mainly because of the cost. Those who choose surrogacy over adoption often have to pay over $100,000 in medical bills, legal fees, compensation to the surrogate for lost wages and usually an additional surrogacy fee.

Couples have two different options when it comes to finding a surrogate, turning to a surrogacy agency or searching independently. Physical and mental health of the potential surrogate are not the only stipulations that intended parents consider when searching for a surrogate. Many agencies stress the importance of finding a surrogate with whom they feel an emotional connection. Weltman’s agency places a great deal of importance on the relationship between the surrogates and intended parents.

“By getting to know who the woman is and watching her throughout the pregnancy, they appreciate more what she’s done, what her life is like, and what an extraordinary person she is,” he says.

Women who decide to be surrogates can either sign up with an agency or work independently. Agencies tend to have strict health requirements, and only accept a very small percentage of women who apply to be surrogates. Circle Surrogacy, for example, requires that a potential gestational carrier be between the ages of 21 and 37, must have given birth to a healthy child and have had no more than two previous C-sections, cannot currently be using anti-depressants or Depo Provera (a form of birth control), and cannot be using or abusing illegal drugs, cigarettes, or alcohol. Working independently allows surrogates to have more flexibility with these requirements, such as with age and number of C-sections for example, but prospective couples often request the same medical information and have similar stipulations.

After going through the application process and being accepted by an agency, surrogates meet with potential couples who are seeking surrogate mothers. Those who are working independently meet with couples to find a good match as well, and many use the internet as a resource to post advertisements for prospective parents to see.

Once a couple and a surrogate feel comfortable with each other, they sign a detailed contract drawn up by an attorney, preferably one specializing in reproductive law. Lura’s bad experience with her first surrogacy was partly due to an unclear contract.

“It was a little vague in terms of what medical procedures I was willing to do and what the couple might want me to do, like maybe having an amniocentesis,” she says. “They changed their minds about that later. I really didn’t know all the little things I was leaving out with my first contract.”

A good surrogacy contract legally protects both the surrogate and the couple and outlines the many fees involved in the process, as well as the medical procedures the surrogate is willing to undergo. The legal protection in a surrogacy contract generally states that the surrogate has no parental rights regarding the child, and that the intended mother is the legal mother.

Most surrogates, both those with agencies and those working independently, charge a base fee. This varies from surrogate to surrogate but can be as much as $20,000 and is in addition to compensation for lost wages. The contract will usually also state how and when the fee is disbursed. Many surrogates break it into monthly payments to be completed before the birth of the baby. Some surrogacy contracts will include an additional insemination fee to compensate for the time and discomfort of the IVF transfer, usually around $500. Some contracts will even allot a certain amount of money for anything related to the pregnancy, such as an allowance for maternity clothes.

Fees for multiple pregnancies, C-sections, and premature births are also common in surrogacy contracts. Daniel and Brent are paying for any extra testing that Renee might need, as well as blood work, and monitoring at the fertility clinic.  If she has to have a C-section, she’ll be paid extra. They are also compensating her for lost wages, calculated through a letter from her boss detailing how much she normally gets paid a week.

Some contracts also include media stipulations. Samantha, who asked that her name be changed for this article because of such a stipulation in her contract, is a first time surrogate working independently for a friend.

“It’s to protect the privacy of the child,” she says. “The parents don’t want their identity out there. They want to be able to tell the baby on their time and on their terms about what’s going on.”

Samantha is a 31-year-old mother of two who works in real estate in Southern California. A friend of hers who had to have a partial hysterectomy emailed a few people she knew who had easy pregnancies and mentioned surrogacy. Samantha’s initial reaction was, Why not? “I loved being pregnant, and I’m not having any more kids of my own,” she says. “If I were to have more children, I would probably think more about it because of the risks involved.”

She had considered surrogacy before and believed it a great way to help women who were struggling to start a family. After doing some more research on the subject, she agreed and has been through the beginning stages of her first surrogacy. After a failed IVF transfer with a donor egg earlier this year, Samantha got a positive pregnancy test on April 5.

As much as she enjoyed being pregnant with her own children, she describes the different emotions she has associated with surrogacy. “Normally with pregnancy you’re planning your entire life, adding another person to your family,” she says. “With surrogacy, I need to plan for the next year not being able to do certain things because of the pregnancy. But after I give birth, I’ll be able to go back to everything I was doing before. I won’t have to worry about raising the child.”

Like many gestational surrogates, Samantha found it easy to remain detached because she has no genetic connection to the child. “I feel like pre-birth childcare, just taking care of their baby until it’s born,” she says. “So it’s like if you’re a nanny for somebody, and it’s your complete responsibility to protect and take care of them until you hand the child over.” But if the genetic connection were there, she says that she wouldn’t be able to do it. “That would be giving up my child. It would be my genes, and I wouldn’t be able to do egg donation either for that reason.”

So early in her first surrogacy, Samantha is not sure if she’ll want to do it again. She says that doing this will let her and her friend become closer, but she has no expectations for a relationship after she gives birth.

“I even told the mom, I want to stay in touch once the baby is born, but I don’t feel like I need to have a role,” she says. “Once I’m done, I’m done. I’m not looking for any recognition for it. I’m not going to be its mom in any way, shape, or form.”

According to Ben Sachs, professor of bioethics at New York University, some of the bioethical issues surrounding surrogacy are concerns that arise with reproductive technologies in general.

“Everybody who does bioethics believes that there are right answers,” he says. “In 2010, no bioethicist objects to IVF, but there are still questions about surrogacy.” One of the arguments stems from the idea that babies shouldn’t be manufactured and that the creation of another human being should be from an act of physical intimacy.

The religious argument against surrogacy is similar to that if some of the bioethical objections. The Catholic Church published a document called “Dignitas Personae: On Certain Bioethical Questions” which addressed many different bioethical questions, including surrogacy and other reproductive technologies. The document states that it is unethical to separate procreation from the context of a conjugal act and that “human procreation is a personal act of a husband and wife, which is not capable of substitution.” Sachs says that bioethicists struggle with this separation as well.

“Some believe that the right approach towards procreation is that it happens and you accept it with joy and an open heart rather than manufacturing and creating with technological assistance.” John Weltman feels that this is because religion is not keeping up with scientific doctrine. “It’s the same religion that is fighting to teach creationism,” he says. “It’s an ever exploding and ever eternalizing system, and this is the only planet with something on it. The bible too has plenty of indications of surrogacy, with Hagar and Abraham and traditional surrogacy. She gave birth to a child who was considered Abraham’s.”

The commodification of children is an ethical concern for some when it comes to surrogacy. “It’s considered offensive to confuse love and money because they’re in opposition of each other,” says anthropologist Susan Rogers. “You would never say that if your parents don’t pay for your college tuition, they don’t love you.”

Lura objects to the claim that surrogacy borders on baby-selling because she feels that surrogates do it more out of kindness than out of financial need. “It’s not making a baby and turning around and trying to sell the child,” she says. “The baby is being prayed for and the couple really want this child.” When people confront her and say that she is selling her baby, she disagrees. “I sold my ability to grow a child. And modern sciences are eventually going to take even that away from us.”

One major concern for bioethicists is the potential to exploit women, which is also a major objection that feminists have to surrogacy. From a feminist perspective, surrogacy transforms women into baby-producers and turns pregnancy into a service. The practice is seen as a physical exploitation of women and their reproductive organs because the intended parents are manipulating the women’s bodies for personal gain.

Anthropologist Helena Ragone wrote in her book Surrogate Motherhood: Conception in the Heart that many surrogates use pro-choice language when talking about their body and the pregnancy, despite the feminist opposition. Both Lura and Brent share this belief.

“A woman who wants to be a surrogate chooses to be a surrogate,” Lura says. “They don’t just grab someone and throw her into the surrogacy world. We all have our own reasons for why we do it, but we volunteer our bodies to do this miraculous thing for a couple that can’t do it for themselves. We’re the only way it’s going to happen.” Brent says that Renee’s decision to be a surrogate for him and Daniel is an extension of his pro-choice beliefs. “It’s about the freedom to choose what constitutes family and realize your dreams.”

According to Ragone, there have been three shifts in the Western conceptualization of conception, reproduction, and parenthood. In her article, “Chasing the blood tie: surrogate mothers, adoptive mothers and fathers,” Ragone outlines these changes. The first is the separation of intercourse from reproduction with the inception of birth control, which may have paved the way for surrogacy very early on. The second is the advent of donor insemination and the possibility of pregnancy without sexual intercourse. The last is what she calls the “fragmentation of motherhood,” the idea of the single mother being dispersed among several potential mothers, as in the case of surrogacy.

Susan Rogers, who teaches an anthropology course in kinship structures at NYU, says that people have ideas about what motherhood should be. When they find themselves in situations that don’t fit into this mold, they try to “put square pegs into round holes” by insisting on the idea that there is no connection between the surrogate and the baby. Weltman, on the other hand, has taken this unconventional format and created a new hole for the untraditional peg.

Most surrogates, whether through an agency or independently, use anonymous egg donors if not using eggs harvested from a close friend or family member of the intended parents.  Weltman decided that couples should be able to choose from non-anonymous donors as well. “When you enter into this process, you don’t think about what it’s like when the child is older, but most children really want to know where they came from,” he says. “The openness and honesty is the key to a healthy child.”

While still stressing the importance of the genetic link, Weltman embraces, rather than conceals, the changing ideas of motherhood and who is involved in the creation of a family. Within his agency, Weltman recognizes the importance of the surrogate’s role in the couple’s lives, stressing her biological connection to the baby while it grew in her womb. Even when the surrogate herself tries to downplay her significance because of the lack of a genetic connection, he is sure to include the surrogate fully in the process.

“It is a very significant thing to do, even if it’s not genetically related to you,” he says. “It’s still someone you’ve been attached to for nine months, and to be able to hold it after it’s born, and to get just some sort of an update after it’s born is important.”

Homosexual couples starting a family through surrogacy confront the traditional family model twofold. Terry Boggis, the Interim Director of Public Policy at the LGBT Community Center, says that the process requires more consciousness because family law is not on their side yet, and that homosexual couples with children aren’t even considered families in the eyes of the law.

She points out the importance of remembering that gay parenting still is a revolutionary idea, and still challenges some people’s ideas of the family. “But the ordinary June Cleaver is from the 1950s,” she says. “It was a very short window in U.S. history when that view prevailed. Most families are unusual now: single parents, stepfamilies, kinship care. They’re complex, and this is just one form of that complexity.”

Surrogates and intended parents confront these novel ideas about parenthood and the changing definition of family through this relatively new way of creating a child. But to them, it’s merely a natural motivation that happens to have a different process. The goal is to have a family. The end result is the same.

“Who really owns the answer to what constitutes family?” Brent says. “Good parents are of all combinations and genders. I don’t see what we’re doing as a political act. If you want a child, you do what you need to do. We’re just taking advantage of what science enables us to do to prolong life and promote life.”

Lura knows “traditional” families with a mom and a dad who don’t get along, and it doesn’t make any sense to her to consider them a family. “What matters is that you’re loved,” she says. “The point of being a family is that you’re surrounded by people that love you.”

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