Surrogacy, 2.0
Author : Douglas NeJaime
Date : March 25, 2020
Courtney G. Joslin, (Not) Just Surrogacy, __ Cal. L. Rev. __ (forthcoming, 2021)
Legal conflict over surrogacy has been with us in the U.S. for more than three decades. And yet the conversation in scholarly, legal, and policy debate remains largely centered on the question of whether to permit or prohibit the practice. In an important new article, (Not) Just Surrogacy, Co.urtney Joslin brings new and critical insights to the conversation about surrogacy-focusing on not whether to allow, but how to regulate. Joslin, one of the countrys leading legal experts on family formation through assisted reproduction, makes two especially significant contributions-one descriptive and the other normative.
Joslin catalogues how every U.S. jurisdiction regulates surrogacy. This includes whether the jurisdiction prohibits or permits surrogacy-and if it permits surrogacy, whether it includes both gestational surrogacy (in which the person serving as surrogate is not genetically connected to the child) and genetic surrogacy (in which the person serving as surrogate is genetically connected to the child). But Joslin goes well beyond these initial questions, supplying the first comprehensive review of surrogacy regulation across multiple dimensions from the perspective of both intended parents and individuals acting as surrogates.
In my own work, as Joslin explains, I have focused on each states treatment of intended parents in gestational surrogacy arrangements-paying particular attention to whether states treat intended parents with a genetic connection to the child differently than intended parents without such a connection. Yet parentage constitutes only one of the axes on which Joslin examines intended parents. Throughout the article, and most comprehensively in Appendix B, Joslin charts what she terms 'Intended Parent (IP) Protections' in each jurisdiction that allows surrogacy in some form. These protections include: whether individuals, without respect to marital status, gender, or sexual orientation, may form families through surrogacy arrangements; whether one or both of the intended parents must be genetically connected to the child; whether the intended parents can pursue surrogacy without showing that it is medically necessary to have a child; whether the intended parents can pursue surrogacy without undergoing a home study; whether the intended parents are treated as legal parents by operation of law; and whether the intended parents can secure a pre-birth order of parentage.
Joslins article explores not only the status of intended parents but also the status of individuals who serve as surrogates-an area that has received scant scholarly attention. In Appendix C, Joslin documents what she calls 'Persons Acting as Surrogate (PAS) Protections' that might exist at various points in the arrangement. These include: whether the person acting as surrogate must be represented by independent counsel; whether the intended parents must pay for counsel for the person acting as surrogate; whether the person acting as surrogate retains the right to control her own behavior leading up to and during the pregnancy, for example, decisions about diet and exercise; whether the person acting as surrogate retains decision-making authority with respect to the pregnancy, including decisions regarding selective reduction of embryos and termination; whether the person acting as surrogate gets to select the doctor of her choice; and whether the intended parents are required to take custody of the child, such that the person acting as surrogate is not treated as a legal parent with responsibility over the child.
Joslins descriptive work constitutes a major contribution. It will be invaluable to lawyers, legislators, and advocates working in the field. And it should inform scholarly work going forward.
Joslins exhaustive research on existing surrogacy regimes also allows her to uncover important normative stakes. The normative debate on surrogacy has largely been framed around the decision to allow or prohibit the practice-whether it promotes or undermines equality and freedom. Joslin shows that how surrogacy is in fact regulated-once it is allowed-raises equally important questions of equality and freedom. Joslin rightly treats surrogacy as a practice that implicates the interests of multiple parties and urges us to attend to the particulars of how each party is treated. A surrogacy regime, Joslin shows, can be more or less equality- and autonomy-promoting, and that depends on how it regulates the status of the intended parents as well as the interests of the individuals who serve as
surrogates.
In my own work, I have focused on surrogacy because the practice has the capacity to unsettle conventional norms governing family formation and parenthood, depending on how it is regulated. In particular, whether individuals are recognized as legal parents, regardless of their genetic connection to the child, relates to whether surrogacy disturbs,
or instead reflects and perpetuates, traditional understandings of the family. If the state refuses to treat a woman who relies on both a gestational surrogate and an egg donor as a legal parent, what does that say about motherhood? If the state refuses to treat a nonbiological father in a same-sex couple who has a child through surrogacy as a legal parent, what does that say about fatherhood? Legal systems that allow surrogacy but limit the recognition of intended parents in this way may reproduce views of the family that see motherhood as a biological fact and fatherhood as a secondary,derivative status.
Joslin shows how many forms of regulation-not simply parental recognition-may destabilize or entrench traditional views of family and parenthood. States can promote equality and autonomy by allowing access to surrogacy arrangements regar
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Roadblocks to Surrogacy, Hoechst, Judith A., Sobottka, Sean C.
For individuals and couples struggling with inferility, it takes a village to have a child through third-party assisted reproducion. Surrogacy provides intended parents with the precious hope of a family, but natural stressors and roadblocks along the way are to be expected.
Cost
The high cost of surrogacy can be prohibiive to intended parents. With cumulaive costs for agency fees, in vitro ferilizaion (IVF), legal assistance, egg donor and surrogate compensaion, medical costs, and other expenses ranging from $70,000 to $175,000 or more, surrogacy may simply not be a viable path to parenthood. For intended parents who are not able to pay such costs from on-hand reserves, opions include loans (home equity, bank, reproducive clinic, and family); family gits; and other sources. Interest rates may prove prohibiive for many. Tax deducions for the medical cost of inferility diagnosis and treatment
are permited, but a deducion for compensaion paid to a gestaional carrier typically is not. When a client does not have a uterus, is lacking a funcioning uterus, or is male and can not have a child without the assistance of someonersquo;s uterus, it would seem that surrogacy should be considered a medical expense and thus a permissible tax deducion.
Geneics and Third-Party Assistance
Hetero couples will use their own ova and sperm or donated ova and/or sperm. Will one parent or both parents whose geneic material isnrsquo;t used feel any less a parent? Will the intended mother feel any less a mother if she is unable to carry her child? Grief issues connected to inferility and the loss of control in inferility treatment will be a source of emoional pain for many. Psychological support is always of key importance as intended
parents go through inferility treatment.
Gay couples will oten need both an egg donor and a surrogate. They may choose to form and transfer embryos using one intended fatherrsquo;s sperm or both intended fathersrsquo; sperm, or they may choose to transfer the best embryo to the surrogatersquo;s uterus regardless of geneics. Gay couples hoping for twins may elect to simultaneously transfer embryos from both intended fathers. Deciding whose geneic material to use may be a diicult choice. The same-sex intended fathers may have chosen surrogacy over adopion in order to have a geneic connecion to a child, but, in the end, one intended father will not be geneically related to each child. Again, psychological support is key.
Intended parents who need an ova donor will choose either a known or an anonymous donor. They must consider whether their donor will want to meet children born through donaion in the future or whether she will provide medical informaion if requested. Intended parents may ask a friend or family member to donate ova, and they must therefore consider whether a known donor will be able to maintain boundaries with respect to the parents of a child born through her donaion. Gay intended parents someimes commit to reciprocal donaions with lesbian intended parents planning to form their families. How will such families relate or interact with each other in the future, if at all?
Adopion versus Surrogacy
Domesic or internaional adopion is another path to parenthood. Cumulaive costs for adopion range from $30,000 to $90,000 or more. Such costs are inancially prohibiive for
many hopeful intended parents struggling with inferility. Moreover, the adverse psychological impact of a birth mother changing her mind and not ulimately relinquishing a baby to her chosen adopive parent or parents has emoional consequences far beyond what most parents could possibly bear. This alone can make having a child through surrogacy a preferred choice regarding family formaion decisions, since nonrelinquishment in surrogacy is rare. Health Concerns
The high level of medical and psychological screening required of all paricipants in third-party reproducion arrangements, including potenial surrogates and their partners, ova or sperm donors, and intended parents, supports the premise that, typically, no one is healthier to proceed with a pregnancy than a surrogate. The surrogate must have a history of a normal, term pregnancy without preterm labor, gestaional diabetes, preeclampsia, and other pregnancy complicaions. She is asked to take on the normal risks of pregnancy. The American Society for Reproducive Medicine (ASRM) recommends transferring only one embryo to avoid pregnancies with muliples, which are automaically deemed “high risk” pregnancies. The medical screening process also weeds out a mulitude of communicable
diseases such as cytomegalovirus (CMV), rubella, hepaiis, and HIV and other sexually transmited diseases.
HIV-posiive status can create a roadblock to surrogacy. While signiicant strides have been made to reduce the overall rate of new HIV infecions, the virus sill disproporionately afects
the gay community. In addiion to the health ramiicaions, judgmental aitudes prevalent in the broader society may also be diicult to manage. While sperm-washing allows HIV-posiive individuals to become parents without transmiing the virus to the surrogate or child, the medical risks and sigma related to HIV transmission can deter surrogates from working with an HIVposiive intended parent.
Legal Concerns
All parents having children through surrogacy worry that legal recogniion of their parenthood may fail and that they will end up without their children. Surrogacy law is a patchwork of judicial decisions and legislaion across the United States, paricularly for
same-sex couples. Depending on the state, surrogacy laws can be paricularly problemaic for intended parents using an ova or embryo donor. Intended parents must work with their legal counsel to idenify the best states for the legal establishment and protecion of their parental rights. Ad
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