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How Surrogacy Laws Undermine Pro-Life Efforts
Ana Brennan, J.D. 04 April 2019
Over the past few months the Commonwealth of Virginia has been the epicenter of controversy; whether it be the embarrassment of a Governor in blackface or who along with at least one state delegate supports legalizing infanticide if it means defending abortion on demand. Then there was the hard-fought battle to stop the pro-abortion “Equal Rights Amendment,” a misnomer if there ever was one. Both inside and outside the halls of government pro-lifers in Virginia dedicated themselves to stopping the ERA. It was imperative to the cause of life that the ERA be defeated otherwise the right to abortion would have been enshrined into law.
It is commendable that pro-lifers in Virginia worked diligently to stop the ERA and a bill that would have legalized infanticide, but while all this was going on there was another piece of legislation that was making its way through the legislature and eventually to the Governor’s desk awaiting his anticipated signature.
In February, without much fanfare, both chambers of the Commonwealth of Virginia legislature amended and greatly expanded their surrogacy laws to include not only married heterosexual couples but also same-sex couples as well as unmarried individuals. In states that allow surrogacy, this type of expansion is not uncommon, but Virginia has taken it a step further. HR 1979 continues the trend of using gender neutral language to rid the law of the biological truth that reproduction requires a man and a woman, but the amended law also uses the term “owned” when referring to embryos; as if human beings are property to be owned.[i]
When granting parental rights to the child born from a surrogate the state considers different factors depending on whose genetic material was used to create the child. An intended parent who is genetically related to the child is considered the parent of that child. But some intended parents, for one reason or another, cannot or do not use their own genetic material. In these cases, the intended parent(s) can use spare, left over frozen embryos not used by other intended parent(s); they can “own” someone else’s children.
Under Virginia law, if the intended parent(s) is not genetically related to the child born from a surrogate, the state will next look to whether the intended parent(s) “owned” the embryo that was implanted to determine parental rights. Some argue that this is actually a very pro-life provision because it encourages the “adoption” verses the destruction of embryos. While it may be true that a few embryos may be spared, codifying the ownership of another human being, like a piece of property, will in the long run, do more to devalue human life.
In the context of abortion, pro-lifers are constantly trying to educate the public about the humanity of the unborn child. We arduously stress that the unborn child is a distinct individual from the mother with its own unique DNA. Of course, we are right to do so. This notion of ownership of an embryo is therefore completely contrary to our defense of the unborn.
This statute sets a very dangerous legal precedent. If, under the law, an embryo in a petri dish can be “owned” as property, then shouldn’t the same hold true, if not more so, of the embryo in utero? Should Roe v. Wade be overturned, and the legality of abortion sent back to the states, Virginia is going to be hard pressed to outlaw abortion when under the current law embryos are already considered objects to be owned, less than human and not worthy of protection.
Generally speaking, laws to liberalize the practice of surrogacy go unopposed. Rarely if ever, have I heard of organized opposition to surrogacy legislation from pro-life groups, or the Catholic Church for that matter. As far as I can tell, this was the case in Virginia. The pro-life movement doesn’t seem to consider surrogacy a pro-life issue. Now we have a situation where human beings are legally recognized as objects to be “owned.”
As we have discussed previously,[ii] even before the latest wrinkle added by Virginia, there are many reasons why surrogacy is a pro-life issue. The surrogacy issue illustrates that our movement is not merely anti-abortion, but truly pro-life. Regardless of where an innocent human being resides, in the womb, in a hospital bed, or in a petri dish, we must be there advocating for its protection, but we don’t. Ignoring the surrogacy issue has only been to the detriment of advancing the cause of life. The amended surrogacy law in Virginia has the dangerous potential to undermine every piece of pro-life legislation in the state, yet it was enacted almost completely unopposed and unnoticed.
[i] Virginia Acts of Assembly, https://lis.virginia.gov/cgi-bin/legp604.exe?191+ful+HB1979ER
[ii] "A Dubious Nullification of Natural Law," Ana Brennan, April 12, 2018, Sebastian’s Point, https://www.societyofstsebastian.org/index-04-12-18-surrogacy-brennan; "Reproductive Technologies and the One Flesh Marriage Union," Katie Breckenridge, March 21, 2019, Sebastian's Point, https://www.societyofstsebastian.org/copy-of-sebastian-s-point-31.
Ana Brennan, J.D., is Vice-President of the Society of St. Sebastian and the Senior Editor of the Journal of Bioethics in Law & Culture.