Regulation Can Never . . .

by Matthew Eppinette, CBC Executive Director on January 17, 2018

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On Tuesday, January 17, 2018, Jennifer Lahl was given only two minutes in front of the Washington State Senate’s Law & Justice Committee to testify about surrogacy. They are considering SB 6037, The Uniform Parentage Act, which would, among other things, legalize surrogacy in and encourage reproductive tourism to Washington State.

In just over two minutes, Jennifer attempted to summarize the full scope of the written testimony and the enclosures she submitted to the committee. You can watch the video of her testimony below, and read her full written testimony below that. It is a powerful indictment of the practice of surrogacy that highlights yet again the many ways in which regulation will never be adequate to protect women and children.



Members of the Law and Justice Committee:

My name is Jennifer Lahl and I am here today to offer my expertise on the subject of surrogacy, which is part of SB 6037, the Uniform Parentage Act.

I worked as a pediatric critical care nurse for nearly two decades. As a bioethicist, I have served as the president of The Center for Bioethics and Culture in the San Francisco Bay Area for the last 18 years.

As a person with expertise in third-party conception, assisted reproductive technologies, as well as being an award-winning documentary filmmaker making films that tell the stories of those harmed by commercial, contract pregnancies, I am often called upon to speak nationally and internationally on human rights violations and the exploitation of women and children. I have twice spoken on surrogacy and human egg harvesting before the United Nations as part of the annual Commission on the Status of Women.

I have read, written and commented on, and testified against many pieces of legislation similar to SB 6037. What always strikes me is how little reflection is given to, what in my mind, should be our first question: Is surrogacy and good and right thing to do?

To underscore, let me quote Dr. Renate Klein, from her new book, Surrogacy: A Human Rights Violation:

In a regulatory approach, a fundamental analysis that, in my view, inexorably leads to a categoric rejection of surrogacy, is pushed under the carpet and never even contemplated. Or, to put it differently: a regulatory inquiry does not start at the bottom and ask whether the practice of surrogacy should be abolished; it starts half way up and asks the questions about how different aspects of surrogacy could or should be regulated. It is thus never a holistic search to understand the nature of the problem, but instead a compartmentalised dissection of multiple problems arising from surrogacy. Regulation enables the practice of surrogacy to continue. It institutionalises disconnection (emphasis mine).

Is it good and right and just to turn pregnancy into a commercial, contract endeavor? Is it ethical to ask a young woman—almost always a young mother, responsible for the care of her own children—to potentially jeopardize her health by engaging in technologies with known risks to her health and well-being as well as risks to the baby or babies she cares for another? Is it ethical to ask her to do this for money or as an altruistic act? Is it ethical to create children in a novel, new way, without those children being able to consent to being part of what is in fact one of the largest human social experiment of our time?

As a pediatric nurse, I often remind people there is only one thing a baby is born knowing: she knows her mother. If we’ve learned anything from years of adoption, it is that children often go in search of their mother once grown up. The missing attachment is deep. Babies have no interest in contracts or money; they have a deep interest in the one person they have known for nine months. Maternal-child bonding is good and natural. We ignore it to the detriment of all of us.

Instead of asking whether surrogacy is something that should even be legal, SB 6037 simply attempts to safeguard against all of the many ethical, legal, and medical problems.

However, I have seen time and again how such safeguards—laws, regulations, and contracts—leave surrogate mothers vulnerable and exploited, and treat children as mere commodities to be ordered, discarded, or abandoned.

I live in California, a very surrogacy “friendly” state with laws meant to protect all the stakeholders. I have personally been involved with two surrogates pregnant with healthy triplets who sought out my assistance when the intended parents demanded they reduce the pregnancies. Melissa Cook and BrittneyRose Torres were both low-income women who were threatened with breach of contract and told they’d have to return all the money, which of course was already spent paying bills. Neither had money to secure legal representation. Even though these women signed contracts with “termination clauses,” they had a change of heart because they bonded with the babies they were carrying. These children will now grow up with the story of their contract birth arrangement gone bad, perhaps being raised by parents that didn’t want them—if the intended parents even kept the children. This is similar to the famous Baby Gammy case in Thailand: a couple from Australia (where commercial surrogacy is illegal) hired a Thai woman to give birth to their twins. The couple took the little girl, but left Baby Gammy because he was born with Down Syndrome. Baby Gammy is now three and lives with his surrogate mother.

Recently, my organization brought to light the story of Jessica Allen, a surrogate mother, also in California, who gave birth to twins for a Chinese couple (surrogacy is illegal in China). Unbeknown to anyone, one of the children was Jessica’s own child. As most surrogates are not allowed to see the babies at birth, it wasn’t until two months later that Jessica was told something was wrong. How could a Caucasian surrogate mother, married to an African-American man, give birth to a Chinese baby and an obviously bi-racial baby? This is a rare event known as superfetation. Jessica and her husband had to fight to get their own child back.

Kelly Martinez is a low income, three-time gestational surrogate. She was lied to, lied about, almost ruined financially, and left for nearly dead. Kelly did two international surrogacies. The first for a gay couple in France and then for a heterosexual couple in Spain (surrogacy is illegal in both of these countries—in fact Surrogacy is illegal in almost all European countries). The gay couple threatened that Kelly would have to keep and raise the twins herself if she didn’t agree not to challenge their scheme to lie about having an affair with her in order to secure passports so that the babies could leave the United States. France doesn’t recognize children born by surrogacy as French citizens. She had no legal representation, but went to the French consulate where a meeting was held in French. She speaks no French and was not offered an interpreter. She had to sign an eight-page agreement written entirely in French. Out of fear, with no money and no legal representation, she felt she had no other option.

During her twin pregnancy for the Spanish couple, Kelly suffered from severe maternal hypertension and pre-eclampsia (common in surrogate pregnancies, especially when the woman is pregnant with multiple babies). Kelly had to be hospitalized early and had to deliver by emergency C-section at 30 weeks. The Spanish intended parents accused Kelly of deliberately delivering early since her contract stated she would receive her full compensation if she carried the pregnancy to 30 weeks. The couple left the country with their twin boys without paying Kelly’s hospital bills of nearly $8,000. After a year of trying to get her bills paid, Kelly found me through the internet, and I was able to assist her in getting these paid by the fertility agency in the U.S. Kelly spoke with me at the U.N. and traveled with me to Madrid, Spain to speak with members of the Spanish Parliament.

I could go on and on with the women who I have met and their tragic stories, but I hope you see that regulation can never protect against or dictate maternal-child bonding.

Regulation can never prevent superfetation from occurring.

Regulation can never protect surrogate mothers from the real medical risks and dangers they expose themselves to, often because they need the money and are being told they are doing an altruistic thing in helping another have a child.

Regulation can never protect the children born, designed, or abandoned when adults change their minds.

I encourage you to not institutionalize what many around the world rightly see as a human rights violation to surrogate mothers and the babies they carry.

Enclosures:
Three Things You Should Know about Surrogacy
Contract Pregnancies Exposed Part I
Contract Pregnancies Exposed Part II

 

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