Surrogacy and Children's Rights
....an area in need of regulation?
In my home state of Georgia, it’s a felony to pay a “biological parent” to give up his or her child for adoption. But in the absence of specific laws regulating surrogacy, a Georgia couple can enter a binding contract and pay a woman to become pregnant, carry a child for them, and then give that child to them after birth. In the United States, a woman can make over $70,000 plus expenses for carrying and then surrendering a child who may be hers biologically or that of the intended parents.
I think we can all agree that, thanks to this modern science, more couples can experience the joy and meaning that comes from parenting child. It’s predicted that the global surrogacy market will increase almost tenfold between now and the early 2030s. But the current legal framework, both internationally and in the United States, appears inadequate to the difficult issues surrogacy presents. Some states, such as Arizona, simply won’t enforce contracts between surrogate mothers and intended parents. Others such as Louisiana prohibit paying the surrogate mother. Surrogacy provisions of the Uniform Parentage Act, which has been adopted in a number of states, place age and health guardrails on who can be a surrogate mother and who can enter a contract for the services of a surrogate. In many states including Georgia where there are no laws in place, a mother’s agreement to carry a child for another couple may simply be interpreted under the rules applicable to commercial contracts. And if the US legal landscape is complicated, the international one seems to be the Wild West. Businesses offering surrogacy services have been accused of exploiting poor and vulnerable women.
Especially in jurisdictions where surrogacy is neither illegal nor regulated, the arrangement often comes down to one of contract enforcement. But what happens when the intended parents no longer want the child or reject a child born with a disability? What happens when the surrogate mother who gives birth to the child decides she wants to keep the little one? In such situations where adults fight over the child, how are the child’s rights and best interests protected? What happens when circumstances prevent the newborn from being placed quickly with the intended couple, as occurred during the Covid pandemic, and the child lingers, unattached to the intended parents?
Every country, including the United States, is bound by treaty to prevent the sale and trafficking of children. Every country is either bound by treaty or by its own laws to ensure children are protected from harm. Experts have noted that surrogacy raises ethical, moral, and legal questions regarding personal freedom, children’s rights to family and identity, and women’s rights. Without a consistent legal framework in place to protect those rights, surrogacy can lead to the exploitation of everyone involved: vulnerable women, couples desiring a family, and children.
Heeding the request of the UN Special Rapporteur on the Sale and Sexual Exploitation of Children, International Social Services in 2021 laid out some basic principles that the international community must adopt to protect those involved in the surrogacy process. First, the organization emphasized that contractual provisions of a surrogacy contract must not override the child’s rights and best interests. There must be no guarantees of a "designer baby.” Children born through surrogacy have a right to know their identity and nationality.
ISS’ recommendations include a number of procedural safeguards present in some US laws. Prior to the pregnancy, surrogate mothers should be screened to ensure they are entering the arrangement voluntarily and with a full understanding of the circumstances. Intended parents should be screened to ensure they are appropriate, with an extensive home study performed as is done in adoption cases. Judicial or other independent authorities should be involved with the surrogacy from the beginning to ensure the rights of the parties and the child are protected during the process.
Some see surrogacy as a miracle that allows couples to fulfill their desire to be parents despite infertility. Others see it as inherently exploitative of women and children. The family dynamics impacted by surrogacy have been known since the time of Abraham. Given the new technologies spurring this growing method of family formation, we need to consider how to manage the process in a way that protects all of those involved — especially the child born through surrogacy.