The international marketing of gestational surrogacy has played down the risks of invitro fertilization procedures in order to lure low-income women and wealthy intended parents. They’re told that advances in assisted reproduction make it simple to have a surrogate child. The eggs may be harvested from a student at Barnard College, the sperm may come from an intended parent or a student at Oxford. After the fertility clinic creates one or more embryos, they are inserted in the womb of a gestational surrogate mother. Nine months later, through the miracle of modern science, the affluent couple has their made-to-order baby.
The reality is quite different. Assisted reproduction in Third World countries has been grim (see the posts on the Our Bodies Ourselves web site: BCog blog post, “Reproductive Technology and Genetic Engineering”; and Surrogacy360.org post, “Gestational Mothers”). Frequent incidents of trafficking, medical malpractice, and the deaths of gestational surrogate mothers have caused India, Nepal and Thailand to close down their multi-million-dollar, cross-border surrogacy industries. The ill treatment and commodification of women and babies has resulted in making for-profit surrogacy illegal in Canada, England, Italy, France, Switzerland, Germany, the Netherlands, Belgium, Spain, and Portugal. In some of these countries, this can also extend to denial of citizenship to the surrogate child.
For-profit surrogacy in the United States has not been as grim as in the Third World, but it remains highly predatory towards low-income women and unregulated. Health risks remain substantial. It’s legal in 11 states, illegal in three, and legal with a variety of restrictions in the rest of the states. The New York Times reported in 2014 that the industry is highly profitable in California, where lawyers and clinics were getting between $90,000 and $150,000 to cover recruiting costs, medical procedures, and legal fees. The gestational surrogate mothers were paid anywhere from $10,000 to $30,000 for nine months of pregnancy (or $1.54 to $4.63 an hour). Half of the wealthy clientele came from abroad. Some of the common problems were intended parents changing their minds, the abandonment of babies born with a disability, and conflicts around aborting embryos to avoid twins or triplets (http://nyt
For-profit surrogacy has not been legal in this state, but egg harvesting has been big business around New York’s exclusive colleges. Websites feature photographs of laughing white women, suggesting that egg donation is fun, glamorous, and for the racially privileged. The donors are selected for educational attainment, health, and — most importantly –– having good health coverage. The egg donors are required to sign contracts that limit their ability to sue. These women are then subjected to daily hormone injections for one to two weeks to produce as many eggs as possible and a procedure to extract eggs using a needle guided by ultrasound. Persistent pain and bloating are common side effects experienced by young women who have donated eggs as is ovarian hyper-stimulation syndrome (OHSS). Potentially life-threatening complications occur about two percent of the time, and there is also a potential but slight risk of an ovary becoming twisted during the hormone treatment and having to be surgically removed. New York Times medical writer Jane E. Brody devoted a column on July 10, 2017 to the potential risks of the fertility drugs given to young women donating their eggs, including death from cancer. Egg donors are not fully informed of these risks.
Gestational surrogacy entails even higher risk. Glossy websites give the impression that assisted reproduction has a high success rate. While an embryo can be inserted in a womb easily, it may not stick to the uterine wall. So more than one embryo will be inserted, and the gestational mother may have to be flooded with hormones. Then the placenta may not develop fully. Cesarean deliveries, preeclampsia, placenta previa, and abruptio placenta occur at higher rates with assisted reproduction (American College of Obstetricians & Gynecologists, ACOG report number 671, September 2016).
Equality New York, Lambda Legal, and the Human Rights Campaign have signed onto the for-profit surrogacy industry’s effort to make even more profit in New York State (A.1071/ S.2071). The legislation could have regulated the industry for the benefit of the gestational surrogate mothers and egg donors, so they would be fully informed of health risks. It could have prevented intended parents from being exploited by high legal and clinic fees. It could have required registry protocols on the outcomes of all assisted human reproduction similar to those in place for cancer outcomes.
Instead, this dense legislation is written by the for-profit surrogacy industry. There are two key provisions. The first makes it clear that cross-border surrogacy is the objective: The intended parent only has to prove that they have been a resident in the state for 90 days or that the child was born in the state. The second provision is the requirements of a contract with gestational surrogate mothers (called “carriers” in the legislation). On the surface, it might appear that contracts protect these low-income women, but the bills spell out less than adequate safeguards. In the United States, long-term health problems (6 months postpartum) are reported by 31 percent of all women giving birth, with a higher incidence for women who have had cesarean deliveries (“After the afterbirth: a critical review of postpartum health relative to method of delivery,” Journal of Midwifery & Women’s Health, October 10, 2016). Yet this legislation limits post-delivery health insurance coverage to the gestational surrogate mother to 8 weeks. Nor is there a mention of disability insurance or life insurance. To require this additional insurance would better inform low-income women of potential risks. Not stated — but that’s what lawyers are for — is that these contracts will protect intended parents from litigation should problems develop.
This legislation proports to be a “reform bill” because it does not allow intended parents to reject babies with disabilities. This is a fig leaf for a bill that will allow the surrogacy industry to remain predatory and unregulated.