I Want To Put A Baby In You: The Curious Case Of Louisiana

Louisiana's proposed legislation is not an appropriate solution to the difficult challenges in the realm of Assisted Reproductive Technology, as columnist Ellen Trachman argues.

Louisiana stampTwo weeks ago, the Louisiana House Committee on Civil Law and Procedure advanced House Bill 1102. The bill tries to set out a statutory framework permitting surrogacy in the state, but only under very particular conditions.

Specifically, the bill provides that:

  • A surrogate cannot be compensated.
  • A surrogate must be between the ages of 25 and 35.
  • The intended parents must be a man and a woman.
  • The embryo must come from the egg and the sperm of the intended parents.

Although the measure was approved by the committee without objection, the bill has since begun to cause a great amount of unhappiness on both sides of the aisle.

The Right.  Some religious conservatives strongly object to surrogacy under any circumstances. In short, they don’t think House Bill 1102 goes far enough in limiting surrogacy. At least one conservative witness testified that she considered surrogacy to be “an experiment on children.” The testimony centered on the objection to separating children from their birth parent—i.e., the surrogate—without understanding the ultimate consequences of such a separation.

Embryos Are Legal Persons. Louisiana conservatives also argue that permitting surrogacy naturally leads to the creation of more embryos, many of which are in excess of those desired by the intended parents. Louisiana has taken a unique legal approach when it comes to embryos. For now, it’s the only state with a “personhood” statute on the books for embryos.

In other words, Louisiana considers embryos to be people. Embryos, like people in Louisiana, can sue and be sued. And like people, embryos generally can’t be legally killed. As a result, individuals who undergo in vitro fertilization in Louisiana are restricted from discarding any extra embryos not used. This is an odd result, since any round of in vitro treatment generally results in leftover unused embryos. In Louisiana, however, your only options with these embryos are to donate them to others for reproductive purposes, or to transport across state lines where you can more freely determine their fate (i.e., destroy them).

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The Left. On the other hand, many objectors argue that the proposed restrictions go too far. For instance, the proposed requirement that the intended parents be exclusively a man and a woman is likely unconstitutional after the Court’s June 2015 ruling in Obergefell v. Hodges.

Additional objections relate to the requirement that the embryo be formed from the intended parents’ egg and sperm. In truth, this provision is simply a separate backdoor way of preventing same-sex couples from using surrogacy to build their families. Worse yet, such a provision would also bar from utilizing surrogacy (1) single individuals and (2) heterosexual couples where one partner may not have viable gametes. In short, the proposed law would prevent the people who need surrogates the most from using them.

Finally, some objections—which seem more “libertarian” than “liberal”—relate to whether the bill’s ban on compensated surrogacy is appropriate. Such bans greatly reduce the ability to find someone willing to carry a child, much less multiple children, for 9 months. Indeed, only those lucky few with a friend or family member willing to undergo a pregnancy for free are able to enter surrogacy arrangements under the proposed statute.

New York. The bill’s proposed ban on compensated surrogacy is not unique. A number of jurisdictions allow surrogacy only absent compensation. New York, for instance, outlawed compensated surrogacy in the late 1980s in the aftermath of the Baby M case in nearby New Jersey. That case involved one of the earliest well-publicized surrogacy debacles. Briefly, a surrogate was the biological mother of the child she delivered, and after the birth she decided to fight to keep the child. In the aftermath, New Jersey banned surrogacy altogether, and New York enacted legislation to preclude compensated surrogacy arrangements. (You may remember that Phoebe Buffay carried her brother’s triplets in Friends–but not everyone is lucky enough to have a Phoebe in their lives).

Notably, New York has recently seen a movement to reverse the “no compensation” requirement. One State Senator, Brad Hoylman, has led the charge to try to make surrogacy available as a method of family building for those not lucky enough to have a volunteer surrogate.

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Going back to Louisiana, House Bill 1102 is not an appropriate solution to the difficult challenges in the realm of Assisted Reproductive Technology. While I often discuss the potential role for reasonable regulations in this area of the law, I must stress the need for thoughtful, and not reactionary, solutions. Instead, the pending Louisiana bill is simply an effort to limit the number of surrogacies in the state, and transparently limit the types of people who can enter surrogacy arrangements. For this reason, it’s better that Louisiana pass no law at all, rather than House Bill 1102.


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. You can reach her at babies@abovethelaw.com.