Family Law

The $5 Million Surrogacy Offer And Disgraced Politician Trent Franks

thankfully, Franks has resigned from Congress, so we’ll never have to unravel the weird details behind this story.

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Trent Franks

It was just a matter of time.  So many women have come forward to discuss the topic of sexual harassment that it was inevitable that one would eventually involve surrogacy.  That means that finally, I have “jurisdiction” over this topic.

One of the latest reports involves Arizona Representative Trent Franks.  Franks himself acknowledges that he had a “discussion of surrogacy with two previous female subordinates, making each feel uncomfortable.”  According to his accusers, one employee reported being offered $5 million dollars to be Franks’s “surrogate,” and another experiencing workplace retaliation as a consequence of rebuffing Franks’s surrogacy request.

It was clear to the employees that Franks was requesting them to become pregnant and carry his child.  What was less clear was how that pregnancy was to be, like, actually achieved.  Generally, a gestational carrier pregnancy (where the surrogate is not genetically related to child), is conceived by in vitro fertilization (IVF).

But that’s the generous interpretation of what Franks meant.  The other possibility is that Franks was asking for a “traditional surrogacy,” where the surrogate is also genetically related to the child. Worse, the implication may have been that the conception of the child would be through sexual intercourse between Franks and the employee. Spoiler alert: that isn’t really a surrogacy arrangement. It’s more like an affair, where the man expects the mistress to give up rights to the child conceived from the situation. There’s no precise legal term for that arrangement.

A Familiar Controversial Name. This is not the first time that Franks has been in national headlines for controversy. In 2013, Franks was pushing an anti-abortion bill that did not include exceptions for victims of rape. In response to criticism, Franks made the claim that “the incidence of rape resulting in pregnancy are very low.”

While medical studies disagree about the pregnancy rate related to forcible rape, Franks was wrong about this statement. The American Journal of Obstetrics and Gynecology, for instance, reported at that time that more than 30,000 pregnancies resulted from rape each year in the United States.

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You may be surprised to learn that Franks is not a doctor, but an ex-petroleum company CEO.  So I guess it’s not surprising that he flubbed this issue really badly.

A $5 Million Offer? Probably Partly For Sexual Intercourse. Notably, Franks is no stranger to surrogacy and its process. In fact, he and his wife suffered from infertility, and previously used a gestational carrier. The couple have twins born of a surrogate.

But given his experience, Franks would have known that the market rate for surrogate compensation is only around $25,000-$50,000. Not $5 million dollars. To be sure, there are some “plus” factors for surrogacy compensation. These include additional compensation for women who previously had successful surrogacies, or for a surrogate willing to carry more than one child (aka, twins or triplets). However, there are not enough plus factors in the world to even remotely approach $5 million dollars.

So what makes up the approximately $4.95 million gap between the market rate and employee’s alleged amount being offered?  I’ll guess that if that amount were truly offered, it involved getting pregnant the old-fashioned way; having sexual intercourse with a Congressman.

Was Surrogacy Even Legal? As loyal readers know, surrogacy laws are not uniform across the United States. There is a high chance that any surrogacy “contract” would not have been legal or enforceable at that time.

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First, Arizona does not permit courts to enforce surrogacy contracts.  Moreover, Washington, D.C., until earlier this year, actually criminalized surrogacy arrangements.  So even in the best of circumstances, Franks’s story makes no sense.

It doesn’t really matter though.  Because thankfully, Franks has resigned from Congress.  So we’ll never have to unravel the weird details behind this story.

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.

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