Jennifer Lahl’s Testimony on South Dakota Surrogacy Bill

by The Center for Bioethics and Culture on January 30, 2020

Post image for Jennifer Lahl’s Testimony on South Dakota Surrogacy Bill

( photo by Shannon Marvel / Forum News Service) 

Dear Chair and Members of the House Judiciary Committee,

Thank you for this opportunity to speak with you today about House Bill 1096 which would prohibit commercial surrogacy in your state.  

Every 14 minutes, in the United States, someone is added to the kidney transplant list. Thirteen Americans die each day while waiting for a life-saving kidney transplant. 

And that is just kidneys and doesn’t even count for heart, liver or lung transplants.

For many years, I worked as a pediatric critical care nurse and cared for many babies and children who were recipients of organ transplants. Some of my patients, who died, became organ donors. One common organ donation slogan is “Give the gift of life”, because the donor is truly saving a life.  

But U.S. policy on organ donation is firmly and rightly set within the parameters of  a true donation, where the donor isn’t paid for their organ or their services, but their medical care is covered, and even though the waiting list in America has over 100,000 people,  people whose lives hang in the balance, waiting for the gift of life, we reject efforts to change policy to a payment structure. In America, we are fiercely committed to the ethical allocation of precious life-saving resources on a needs-based waiting list.

Whenever a story breaks of a powerful or wealthy person receiving an organ donation, the public gets nervous wondering if the “haves” have jumped the line while the “have-nots” keep waiting.  

Think Mickey Mantle and Steve Jobs who both received liver transplants. Or Dick Cheney and his heart transplant. It is important to ensure the public’s trust that scarce organs are allocated fairly, to those most in need.

If U.S. policy changed, turning human organs into commodities to be bought and sold, we know organs would be sold by the poor, and the most vulnerable, who are in need of money.  Conversely, it would be the rich, wealthy, powerful and famous who could buy.  

Medical students are taught that in medical ethical decision-making and informed consent, money can play a powerfully coercive role in a person’s decision.  It is the case that the more financial need a person has, the more they are willing to ignore the risks, and to roll the dice hoping they will be lucky and beat the odds.

So, in the spirit of justice and equality with the allocation of precious organs available to those waiting, our good policy in the U.S. has allowed transplantation medicine to operate with a large sense of trust from the American people.

This is the context for my remarks that bring me here today. I’d like to turn now to surrogacy, specifically commercial surrogacy, using the framework of organ donation as a sort of model and guide to frame our thinking.

House Bill 1096 is a welcome step toward protecting women (almost always young mothers) and the children they carry as surrogate mothers.

What are some of the ways that women and children will be protected?

First. Similar to concerns that organ donation remains a truly altruistic gift, we see in states where commercial surrogacy is legal, like my state, California, we have had several cases of exploitation of low income and economically vulnerable women like Melissa Cook, BritneyRose Torres, and Jessica Allen. 

Melissa, a single mom, entered into a commercial surrogacy contract in order to raise money to fight for custody of her children from her ex-husband.  Melissa found herself pregnant with triplets for a single man in Atlanta, Georgia. When he asked her to reduce or terminate the pregnancy, she refused. The pregnancy was uncomplicated, the babies were growing, so she felt there was no reason to terminate her pregnancy or reduce the number of babies. Upon her refusal, she was threatened with a lawsuit for breach of contract and told she would need to return the surrogacy payment she had received. She was able to secure a pro-bono attorney, since she had no money to hire an attorney. Her attorney took her case all the way to the U.S. Supreme Court, challenging the constitutionality of surrogacy contracts.  Melissa has never seen the triplets and has no way to know how they are doing. She worries about them every day and works with me to oppose commercial surrogacy.

BritneyRose Torres, is another low-income mother of a young son. She saw an ad on Facebook to be a commercial surrogate. She thought this was a great way to make some much needed money for her family and entered a contract with a couple she had never even met. She, too, found herself pregnant with triplets, being threatened with breach of contract for not reducing the pregnancy down to twins per the intended parents demands. She reached out to me, and I was able to find her a pro-bono attorney.  Her commercial surrogacy contract even had language in it, where she waived her end-of-life decision-making, giving authority to the intended parents, to terminate her life, or prolong her life, based on how far along she was in the pregnancy should she suffer some sort of injury. She delivered the triplets but had pregnancy related health complications and a very difficult post-partem period of healing. She, too, has no contact with the intended parents or the babies she carried for nine months.

Jessica Allen’s husband saw an ad for commercial surrogacy, and she and her husband decided this would be the extra income they needed. Jessica wanted to quit her job as a caregiver to stay home with their children and maybe even buy a house. Jessica was hired by a couple in China, where all surrogacy is illegal. The Chinese come to America to hire surrogates with the added bonus that the babies are U.S. citizens at birth. The clinic transferred one embryo into Jessica’s womb, only to discover on ultrasound, she was pregnant with twins.  She was told the embryo had split, creating twins. As is common with many surrogates, at the time of birth, the babies were whisked away, with Jessica not even getting so much as a glimpse of them. What was discovered weeks after giving birth, was Jessica, by a rare occurrence called superfetation, had given birth to the Chinese couple’s baby and her own biological child. Superfetation is when a woman gets pregnant, and a few short days later, she gets pregnant again. Because Jessica is Caucasian and her husband is Black, at birth it was noted that one baby appeared Chinese and the other baby was mixed race. DNA testing confirmed this.  It took Jessica two months to get custody of her baby and a year to have his Chinese given name removed from his birth certificate. The Chinese couple demanded part of the money be returned (they paid extra for two babies, but only got one) and the surrogacy agency demanded money from Jessica for “taking care of her baby for two months”. Her case is an active lawsuit in California right now.

The common thread in their stories and many more like them is they saw an ad to “give the gift of life” by being a paid commercial surrogate.  They were all in need of money and thought this was the solution to their financial problems. There was no gift in the sense of an organ donor. There was, however, a commercial contract, directing everything about the surrogate mother’s life, with penalties and threats if she didn’t comply.

Second, let me turn our attention to the health risks to women who serve as surrogates and the babies they carry.

Most people are unaware that a surrogate pregnancy, even if the surrogate is only carrying one baby, is a higher-risk pregnancy. Of course, high-risk pregnancies put mother and baby(ies) at risk.  Dr. Anthony Diehl, an Ob/Gyn doctor in Rapid City, also Kelly Martinez’ physician, talks about in my documentary film that featured Kelly, the conflicts of interest when a physician is taking care of a surrogate but is being paid by the people who intend the raise the child.  When Kelly was very sick, and the intended parents were making demands, Dr. Diehl says, “It’s like who has ultimate say here? You really straddle that line and you don’t know. There were all sorts of times I didn’t know who I was supposed to listen to and something always comes up where you don’t know who to go with.”

Surrogacy is a growing phenomenon, so we are just now starting to get some important data out in the medical literature. 

Studies show that women pregnant with donor eggs (the very definition of gestational surrogacy) have a more than three-fold risk of developing pregnancy induced hypertension and pre-eclampsia. Scientists wrote recently, in the journal Fertility and Sterility, that surrogate mothers had an increased risk ofmaternal gestational diabetes, hypertension, and placenta previa when compared to spontaneous pregnancies.  Surrogate pregnancies are also more likely to end in cesarean section rather than vaginal birth (which equates to more risks to both surrogate and baby).

You have heard (or will hear from) Kelly Martinez and her serious pregnancy complications that will have long-standing consequences for her life. 

Gail Robinson, a surrogate for her gay brother and his partner describes her pre-eclampsia like this: “I gained about 20 pounds in a week. I woke up in the middle of the night, and I couldn’t breathe. I couldn’t see, … I couldn’t see the numbers on my phone to call. I went downstairs and out on the porch, and I just started screaming for help… the people downstairs called the ambulance for me. When they got there, I was conscious. I asked for oxygen. They did give me oxygen… I don’t remember anything else. I lost consciousness. And I don’t remember anything I think it was the next evening, when I woke up. I had an emergency Cesarean. I had three doctors in the emergency room, from what I understand. They came by to see me later. One said that I was minutes away from death. The other one said I was in a coma and having seizures. And one said that I was the worst case that they had ever seen.”

Surrogate pregnancies are high-risk pregnancies. In fact, there have been confirmed deaths of surrogate mothers in both the United States and abroad. Unfortunately, one of these deaths occurred recently in January of 2020.  

Brooke Brown, a mother of three, and a three-time gestational surrogate died in Boise, ID in October of 2015.  The twins she was carrying for a couple in Spain, where all surrogacy is illegal, died too. She died of either placental abruption or amniotic embolism.

Crystal Wilhite, a mother of two, from Southern California died in February of 2017 of complications of her surrogacy pregnancy.  Another surrogate in her surrogacy group at the agency said our agency told us, “The hospital discharged her too soon. I believed she died at home and the cause of death was eventually found to be a blood clot.” 

Michelle Reaves, a wife and mother of two, from San Diego died just two weeks ago today on January 15, 2020.  This was Michelle’s second pregnancy for the same intended parents. While the baby she was carrying survived, Michelle died in the ICU from an amniotic embolism.  

Sadly, these are not the only stories I could tell you today, but I hope just hearing about these women will impress upon you the real risks and dangers to the health and well-being of women and children.  

House Bill 1096 doesn’t prohibit surrogacy in South Dakota, it only prohibits women being paid to be surrogates, like organ donors.

The U.S. has one of the highest maternal mortality rates in the developed world, having doubled from 1991 to 2014, and is the only developed country whose maternal mortality rate is rising.

Knowing the high risks of pregnancy to women, and the even higher risks of surrogate pregnancies, why would we not want to pass legislation that will help reduce this mortality rate?

Thank you.

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