Surrogacy Laws: What Price Motherhood?

Last month, New York became ht 18th state to impose major restrictions on surrogate parenthood. Fearing that current surrogacy practices amounted to a baby-selling business, Gov. Mario M. Cuomo passed a law that prohibited the adoptive parents from paying the surrogate mother. The law also denied legal validity to the contract traditionally signed by both parties.

Yet despite the law's good intentions, it actually limits childless couples' chances of finding a surrogate, while also infringing on the rights of the adults involved. Moreover, it does nothing to remedy the main problem of most surrogacy situations, which is not financial but emotional: the surrogate mother's wish to maintain ties to her child.

Formerly, the surrogate mother and the couple employing her signed a contract that specified her fee, promised her payment of medical expenses, and required that she give up the baby. In some cases, it also required her to abort an abnormal fetus. Under the new law, payment is allowed only for medical expenses. Any further commercial transaction was illegal resulted in a fine.

Proponents of the law contend that babies should not be exchanged for money as if they were objects or slaves. Surrogacy should be treated like adoption, they say. In other words, a woman is still allowed to bear a child for the express purpose of giving it up to another, but she is no longer allowed to receive anything in return, not even a guarantee of visitation rights.

This is humanitarian? The improvement in the baby's abstract status is bought at the price of increasing the mother's exploitation.

What is being bought and sold here is the surrogate mother's time and effort, not the baby's. The chief difference between adoption and surrogacy is that in the latter case, the child's mother would not have become pregnant on her own, but rather was specially commissioned by the adoptive parents.

Paying money for a baby is not even the issue, because when a couple adopts a baby, they generally have to pay the adoption agency. The surrogate mother is the only one who could potentially be exploited and turned into a baby-harvesting chattel. Such a law discourages surrogate mothers rather than protects them.

It is also perverse to deny a fee to a surrogacy broker, and fine him $10,000 if the accepts a fee, when adoption agencies are allowed to charge fees. All these illogicalities add up to an attempt to legislate morality, to create laws that would be based on social engineering instead of sound legal principles. The surrogate mother is stigmatized as selfish and greedy, an image that will make surrogates' struggle for visitation or joint custody rights all the more difficult.

Everyone loses: the individuals denied their right OT enter into contracts, the mother who loses compensation without gaining more rights, and the childless couples who will have a harder time finding women willing to undertake the serious medical and emotional commitment of pregnancy on such terms.

This is no to deny that surrogate motherhood creates moral conflicts which need some legal resolution. But ironically, the biggest problem is the natural mother's desire biggest problem is the natural mother's desire to retain ties to her baby, not her willingness to sell it. Far from being eager to barter the kid away, these mothers often go to court for visitation rights precisely because they, like Cuomo, feel that the value of their child cannot be reduced to a mere compensation fee. After having promised OT give the baby away, they find that their ties to it are stronger than they had imagined.

Because of these potential problems, states like New York are right to regulate the practice. Other should be the protection of the surrogate mother, who at present is the party with the most to lose.

Laws condemning "baby-selling" only increase the surrogate mother's dilemma: paradoxically, while the courts often view her as a selfish contract-breaker when she sues for some type of parental rights, this new law also condemns her as a selfish slave-trader when she consents to be compensated for the child's loss.

Instead of simply outlawing the contracts, states should pass laws that require contracts to include a provision that guarantees visitation rights to the natural mother if she wants them. Surrogates' compassion and strong maternal instincts ought not to be disregarded, but instead included in the baby's life.

Surrogate motherhood raises many problems, but the right legal safeguards can help prevent some of them. If the government is to intervene, however, it must take care to do so in a way that strengthens rather than weakens the family unit. The women who choose to share their maternal gifts with others must be encouraged and protected.

Jendi B. Reiter is a regular columnist for The Crimson.