A proposal introduced earlier this year aims to expand the practice of surrogacy within the U.S. in an effort to include same-sex couples as surrogate parents and to loosen state supervision over surrogacy contracts.
The measure was proposed by the Uniform Law Commission (ULC) with the goal of updating the Uniform Parentage Act, which provides the current model legislation for the legal rights of surrogacy practices within the U.S.
A recent article by Professor Helen Alvare was published by the Institute for Family Studies which addresses the contention over the new push to remove state involvement with surrogacy practices, as well as opening the door to surrogacy for same-sex parents.
Alvare outlined the traditional route for parentage laws in the U.S., which were determined by virtue of the mother’s giving birth to the child and the biological relationship between them, while the father’s legal rights were determined by his biological relationship with the child.
Parentage laws became more complicated over time with the introduction of surrogacy, a process which includes multiple parties — a donor egg, a donor sperm, a surrogate womb — in addition to the intending surrogate parents. With the intricacies of such relationships, most states have relied upon courts in governing surrogacy contracts.
However, Alvare notes the new proposal would remove certain language stating couples intending to parent through surrogacy would be made up of one man and one woman, and instead allows surrogacy for parents without regard of sexual orientation. This update would expand surrogacy practices to same-sex couples.
Additionally, the new proposal would eliminate court oversight in surrogacy contracts, essentially removing state supervision from the picture. Currently, most states treat the surrogacy process much like that of adoption, and requires court appearances, a home study, and the chance for the birth mother to change her mind after the baby is born. These requirements would be removed, with the one exception of traditional surrogacy, when the mother can still determine her own parental rights for the first 72 hours after the birth.
Alvare also points out that the ULC, which introduced the updates, also holds views which remain widely disputed among a large portion of citizens and state legislators, including the legality of surrogate motherhood.
While the proposal has been enacted in Washington and Vermont, and introduced in Rhode Island, many still remain sceptical of the measure on the grounds of the controversy surrounding surrogacy itself.
“In addition to facilitating same-sex parenting, the new UPA’s expansion of surrogacy is controversial due to increasing concerns over surrogacy and ART in general,” said Alvare, who is a professor of law at George Mason University.
“The international debate over surrogacy — including its physical and psychological effects upon surrogate mothers and children — is far from over, especially given new films and testimonials recounting the experiences of the women and children involved,” she continued.
Alvare highlighted the various effects which face surrogate mothers, including increased pregnancy risks, such as gestational diabetes, fetal growth restriction, pre-eclampsia, and premature birth.
Other studies have shown the significant emotional attachment that a surrogate mother has with the baby, making their pregnancy a “high-risk emotional experience,” according to researchers in the Iranian Journal of Reproductive Medicine.
Dr. Jennifer Lahl at the Center for Bioethics and Culture Network believes that surrogacy “is another form of the commodification of women’s bodies…and degrades a pregnancy to a service and a baby to a product.”
Abuses, including fraud and exploitation of poor women, as well as lawsuits, have also been commonly associated with the surrogacy process, leaving many to wonder why state supervision would be removed in the new UPA measure.
The Catholic Church taught about the moral problems with surrogacy in the 1987 instruction Donum vitae, in which the Congregation for the Doctrine of the Faith stated that surrogacy “represents an objective failure to meet the obligations of maternal love,” calling it a “detriment” to the family and the dignity of the human person by divorcing “physical, psychological and moral elements which constitutes those families.”
The United Nations also condemned surrogacy in 2015.