As experts in constitutional law and policy in the life issues, Bioethics Defense Fund (BDF) attorneys collaborate with leading academics, physicians, scientists and researchers to develop and defend policies regarding a host of bioethical issues across the nation and abroad.

 

We write today not to support or oppose legislation, but to present information regarding the following legal issues raised by the gestational surrogacy bill pending before the Council of the District of Columbia:

 

• Renting a woman’s womb violates the intent of federal law prohibiting organ sales;

 

• State-sanctioned financially induced pregnancy necessarily encompasses financially induced eugenic abortion;

 

• State-sanctioned gestational surrogacy bills commodify women and subject them to health dangers not contemplated by medical malpractice law.

 

 

Overview

The proposed legislation inevitably has the unintended consequence of being the stimulus to a lucrative gestational surrogacy industry whose brokers engage in practices that exploit financially vulnerable women – in contravention of the policy undergirding the federal organ sale prohibition – by means of paid pregnancy and paid eugenic abortion, while not providing for legal or financial protections against serious risks of medical complications.

 

 

Gestational surrogacy violates the spirit and intent of federal prohibition on organ sales

Gestational surrogacy bills like the one under consideration by the Council of the District of Columbia raise critical policy questions about the commercialization of human reproduction.

 

• The human uterus should be treated like other human organ and tissue inducements under the law. Federal law makes it "unlawful for any person to knowingly acquire, receive or otherwise transfer any human organ for valuable consideration."1 Of course, the human uterus is an organ. Because 42 USC 274e was enacted before the practice of paid womb renting was medically feasible or a widespread practice, the federal ban on paying healthy human beings to endanger their health is silent on cash-induced womb rental.

 

• Federal loophole allows for the exploitation of women. This loophole results in dangerous inequities of legal and medical protections for economically disadvantaged women who are often single mothers delaying full-time work to raise their own small children, and other financially vulnerable women who are lured into risking their health without full and informed consent in order to meet personal or family financial obligations.

 

 

The DC Bill Sanctions Financially Induced Pregnancy and Abortion

On page 2, lines 7-9, the DC Gestational Surrogacy bill gives government sanction to “surrogate parenting cont[r]acts,” which are defined as “the agreement between the intended parents and the intended surrogate relating to the fee or other valuable consideration [for] services rendered and medical costs.”

 

Based on similar legislation enacted in a handful of other states, this codified sanction of paid commercial pregnancy serves as an incentive for gestational surrogacy brokers to create an industry where they profit from the targeting of vulnerable populations of women.

 

It is a common industry practice to pay a high surrogacy fee to women under the guise of “reasonable living expenses.” For example, the Florida-based DreamABaby.com website provides a Gestational Surrogacy Price List (2013) which mirrors the pricing structure of most surrogate brokers. The “price list” specifies that the gestational surrogate will receive $10,000 to $30,000 for “reasonable living expenses."  This fee is in addition to reimbursement for doctor visits, medical tests and required home studies.2

 

Because the DC Surrogacy bill gives legal protection to financially induced pregnancy, it necessarily enables financially induced abortion. Under the constitutionalized regime of Roe v. Wade and its progeny, the gestational carrier in the District of Columbia can “choose” to abort the pregnancy for any reason, including a financially incentivized request (or subtle yet coercive demand) from the surrogate broker on behalf of the intended parents.

 

While financially incentivized abortion may seem to be a far-fetched hypothetical, this scenario was an actual case that BDF was recently consulted on concerning a gestational surrogacy contract in Connecticut. The case involved an unborn baby diagnosed with several potential birth defects. The intended parents, citing the “abortion clause” in the surrogacy contract, demanded that the surrogate abort the baby despite the mother’s conscience objections. See CNN, “Surrogate offered $10,000 to abort baby” (March 6, 2013).

 

The practice of pregnancy termination demands issued to gestational carriers goes beyond the “traditional” abortion rationale where a woman desires not to be pregnant, and crosses into the eugenic rationale of whether third parties want a hired woman to terminate a desired pregnancy of an undesirable unborn child.

 

Again, this practice is not uncommon in the gestational broker industry. The Gestational Surrogacy Price List (2013) available on DreamABaby.com outlines the industry standard of notifying intended parents of possible unspecified additional expenses in the event of “termination of a genetically abnormal pregnancy” or “selective-reduction of a multi-fetal pregnancy.”

 

 

Gestational Surrogacy bills commodify women and subject them to health dangers not contemplated by medical malpractice law

While gestational surrogacy bills provide for the protection of the parental rights of intended parents, the bills do nothing to protect the rights or interests of the women serving as gestational carriers. Women targeted by surrogacy broker ads and large sums of “reasonable living expenses” will often not be aware of the consequences related to the hormone injections, the multiple miscarriages, or the injuries and complications related to the surgical embryo transfer or later procedures involving childbirth or abortion.

 

Current law contemplates medical malpractice and liability when a mother undergoes the documented risks of pregnancy to build a family of her own. But contract pregnancy to build the family of unrelated third parties gives rise to issues of risk and liability that this bill simply provides no framework to address.

 

As pointed out by Pulitzer Prize-winning columnist Kathleen Parker in her Washington Post column entitled Surrogacy Exposed (May 24, 2013), surrogacy bills have forged interesting alliances based on the common concern for the commodification of women:

 

Feminists, traditionalists, Catholics, evangelicals, ethicists and atheists alike have united to combat what many convincingly view as the exploitation and commodification of women and the violation of human rights even as perfect babies and happy families are formed.

 

The Parker piece highlights the high rate of military wives targeted by surrogacy brokers because of their vulnerable and often isolated condition. And the women displayed like products in the catalogs found on surrogacy broker websites reveal that many are single moms who are financially vulnerable.

 

Attracted by the seemingly natural process of pregnancy, the DC gestational surrogacy bill would subject women to the dangers of undergoing multiple injections of synthetic hormones and other drugs, along with the dangers of surgery for the transfer of another couple’s human embryo. The far from natural procedures necessary to prepare a woman’s body to serve as a surrogate can have devastating short and long-term health consequences.

 

The proposed legislation does not contemplate whether military health policies or other individual or group insurance would cover the risks inherent to artificially induced pregnancy for hire. This leaves women at risk of losing their health and their lives for the benefit of wealthy couples who are using them in this new form of human trafficking.

 

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1   42 USC 274e, Prohibition of organ purchases, sets a penalty of $50,000 or 5 years imprisonment for any person who acts to “knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects removal and transfer of a uterus, gestational surrogacy allows a couple to use in vitro fertilization for the creation of their own biological human embryo, and then to pay a third-party woman for the use of her uterus as a “gestational carrier.”

 

2   See http://www.dreamababy.com/downloads/Conventional%20Surrogacy%20Price%20List.pdf (last visited  June  4, 2013).