Family Law, Health Care / Medicine, Kids

Should There Be Even More Regulation Of Our Uteruses?

An interesting new proposal, but far from perfect.

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Occasionally, I’ll hear that some politician is a “surrogate” for another politician, and have to remind myself that there’s another form of “surrogacy” out there. (It usually makes way less sense until I do.) Of course, only the original type of surrogacy stirs controversy.

Today, the abstract fear that women can be exploited through surrogacy (Handmaid’s Tale-style) has led to a patchwork of laws around the world. While some countries (and states like Michigan and New Jersey) ban it, other countries allow surrogacy, as long as the surrogate is not compensated. States like California and Illinois allow compensation for surrogates, but wisely put in place certain safeguards for the parties; these include requiring independent legal counsel, requiring intended parents to be responsible for medical costs, and requiring that the surrogate’s compensation and expenses be held by a third-party escrow agent prior to the pregnancy.

A New Untested Model. Two philosophy professors in New Zealand—Dr. Ruth Walker and Dr. Liezl van Zyl—recently published a book proposing a new model for surrogacy. This one is unlike any we have previously seen, and may be the best thing to come out of New Zealand since Flight of the Conchords.

Under New Zealand’s current regulations, surrogacy is technically allowed, but the surrogate is prohibited from being compensated. Furthermore, the intended parents and their proposed surrogate have to jointly apply to the New Zealand Ethics Committee on Assisted Reproductive Technology (Ecart) to determine if the arrangements can go forward. Even with the approval of Ecart, either party can change their mind mid-pregnancy. That means that either the surrogate can be stuck with a baby she never wanted, or that a surrogate can decide she wants to keep the intended parents’ child. Both are seriously terrible outcomes.

Unsurprisingly, this situation has pushed many New Zealanders to go abroad to grow their families. Some, such as the intended parents I wrote about here, end up in unpredictable jurisdictions, and stuck in precarious situations.

Walker and Zyl argue that surrogates should be compensated. (Yes! I concur.) But they argue that a new governmental regulatory agency, like a Department of Surrogacy, should set the fee for compensation. (Wait. Hold that concurrence.) Although their book does not name a number, one of the authors currently pegs that number at $20,000. That number is low for U.S. standards, where the market currently compensates a first-time surrogate somewhere between $25,000 to $40,000.

The Kiwi professors further propose that the new agency would oversee surrogacy arrangements, ensuring that (1) no unreasonable demands were placed on the surrogate, (2) counseling was provided throughout the process, and (3) the child born from the arrangement would have the right to have a relationship with the surrogate.

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Better Than Nothing, but Still Not Perfect. While the proposal is an improvement over the current system, it still remains suboptimal. First, it involves a price cap that distorts the market. Second, the price cap fails to address the very concern driving the issue – exploitation. If anything, it puts the surrogate at a disadvantage by prohibiting her from bargaining for the market value of her services. Notably, we have seen a comparable restriction on egg donors pulled back in the United States.

Antitrust Charges in Egg Donation Regulation. The American Society of Reproductive Medicine (ASRM) is not quite a “Department of Surrogacy.” But it is a large non-profit organization that most fertility doctors and many fertility professionals pay attention to. Once upon a time, ASRM attempted to cap compensation for egg donors through its ethics guidelines. They suggested that “total payments to [egg] donors in excess of $5,000” should “require justification,” and amounts above “$10,000 are not appropriate.” Donors sued under the theory that ASRM was artificially restraining the market for egg donors. A court never had to rule, since the parties settled and ASRM removed the guidelines. (In case anyone is curious, compensation for egg donors currently hovers in the range of $5,000 to $10,000.)

While Walker and Zyl’s proposals are unlikely to be a fit for the U.S. or many other countries, it is good to see some serious thought going into surrogacy-related issues. It is too easy for fear to result in knee-jerk bans. Those bans only crush the dreams of individuals and couples without other viable options to parenthood. A rational, fact-based discussion, resulting in healthy proposals to address current problems, is exactly what we need.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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