What LAMBDA gets wrong about commercial surrogacy

by The Center for Bioethics and Culture on February 25, 2020

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Dear Sen. Krueger, AM Barrett and AM O’Donnell, 

Senate Bills S7717 and A1071: Response to letter from Lambda Legal et al

We write as an organization that campaigns for women’s and children’s rights, and that includes committed supporters from the LGBT community, in response to the joint letter (undated) sent to you by The National Center for Lesbian Rights (NCLR), GLBTQ Legal Advocates & Defenders (GLAD), Lambda Legal, the LGBT Bar Association of Greater New York, and Family Equality Council, (hereinafter referred to as “Lambda Legal et al”). 

We are of the view that recommendations made in the Lambda Legal et al letter are likely to cause increased harm to low-income women and to children. 

The Lambda Legal et al letter criticizes Senator Krueger’s bill for treating intended parents who engage in gestational surrogacy in the same way as people applying for an independent adoption of an unrelated child, including the requirement for medical evaluations, criminal background checks, and an investigation into the appropriateness of home circumstances. Lambda Legal et al regard these measures as discriminatory and as an unacceptable intrusion by medical providers and government, and they draw a parallel between gestational surrogacy and having children conventionally via sexual intercourse; the latter, of course, requiring no such checks or evaluations. 

This assertion is strikingly paradigmatic of the strong slant in their letter towards asserting claimed rights of the intended parents without proper and measured consideration of the competing rights and needs of the birth mothers and of the children born via surrogacy. The salient difference between having a child conventionally via sexual intercourse, and having a child via surrogacy, is that in surrogacy there is always a very important third party involved – the birth mother – and often, certainly in the case of male couples, a fourth party – an egg “donor” – (in inverted commas, because this normally involves a sale rather than a donation). Many birth mothers continue to wonder about, worry about, and miss the children concerned for years after they are born. Birth mothers can also come to seriously question the good character of some commissioning parents as the pregnancy progresses and there are developments that challenge the ability of the intended parents to maintain a beneficent veneer. When the babies are born, these mothers are then very reluctant to surrender their baby, with whom they have bonded, to the intended parents, for fear of the child’s future welfare. 

A well-known case to exemplify the possibility of harm being caused by the absence of proper checks on intended parents is the 2013 case of “Baby Gammy”, born via commercial surrogacy in Thailand from biological parents. The biological father was a convicted child sex offender. The intended parents insisted on a termination when Gammy was found in utero to have Down Syndrome. The birth mother refused to comply with the termination on the grounds of her Buddhist beliefs. The intended parents took Baby Gammy’s twin sister, Pipah, back to Australia, and left Baby Gammy behind in Thailand. He then had to be raised at the birth mother’s cost. 

If the intended parents had attempted to adopt Pipah instead, the customary checks would have established that the intended father had been to prison for three years for child sex crimes, and the application would clearly have been refused. Why should Pipah not be given the same protections simply because she is born via surrogacy? 

The parallel that Lambda Legal et al draw between surrogacy and birth as a result of sexual intercourse does not stand. There is no universal human right to be a parent, and some individuals, such as those in the Baby Gammy case, are clearly unfit to be parents. The suggestion that the same checks that apply with regard to adoption should not apply in the case of gestational surrogacy is one that provides great scope to adults with ulterior motives and indeed also to all individuals who would be unfit parents for any reason. 

Robust background screening procedures also protect the rights of the birth mother. As noted above, many birth mothers develop a close maternal bond with the baby during gestation: as, clearly, did the birth mother of Gammy. Many birth mothers think with anxiety and a sense of sad loss about the babies they have carried and then surrendered, for years afterwards. Robust screening procedures at least provide an increased degree of reassurance to the birth mothers. 

Not only would child sex abusers be protected by the absence of proper background checks for intended parents: the same applies to child traffickers, and to surrogacy tourists from abroad of all descriptions, who take the babies and return to their home countries, with no one ever knowing what becomes of the children. 

Senator Krueger’s bill represents an attempt to provide better protections to economically vulnerable women and to children, but surrogacy is a medical, legal and ethical minefield that no amount of regulation can transform into an acceptable measure. 

The rights of intended parents do not deserve a higher weighting than the rights of economically vulnerable women and of children. Commercial surrogacy commodifies and instrumentalizes low-income women as a means to meet the wishes of people able to afford often six-figure sums. The medical procedures that birth mothers and egg donors experience, which include the injection of strong hormones, can be fatal. 

The Lambda Legal letter does not do justice to the emotional attachment of the birth mother to the interests of the baby she has carried, and the comment “it is not appropriate to treat her as a parent” should be disputed. It is absolutely appropriate to give the birth mother the opportunity to decline to surrender the baby to the intended parents should she fear that the baby will come to harm, and we have encountered such cases in our work. 

In surrogacy, the child should have a right to information about the identity of his or her genetic parents at some later stage, if required. Many people who are adopted or conceived via an assisted reproductive procedure such as surrogacy or gamete donation, suffer genealogical bewilderment that produces a strong need to find out who their genetic parents are. Not knowing the identity of a birth mothers could also be a cause of genealogical bewilderment. All relevant information about the identity of biological parents and birth mothers should therefore be registered. 

For the protection of the child in his or her future life, the requirement for full medical and psychological evaluations of all relevant parties, including of those who “donate” gametes, is a legitimate one. The child’s rights here are paramount and are not easily trumped by claims to rights by adults involved in the process. 

There is a moral responsibility to weigh competing interests in a fair and balanced way. We do not consider the communication from Lambda Legal et al to have succeeded in this endeavor. 

Yours sincerely, 

Gary Powell is the European Special Consultant to the Center for Bioethics and Culture. He studied Philosophy under the tutorship of Baroness Mary Warnock, who chaired the UK Committee of Inquiry into Human Fertilisation and Embryology that led to the Human Fertilisation and Embryology Act 1990. Gary regards surrogacy as a human rights violation similar to the sale of human organs and campaigns internationally to raise consciousness about the harm it causes to vulnerable people. As a gay man, he opposes surrogacy as an unacceptable LGBT rights objective on account of the serious violations it causes to the rights of other groups. 

Jennifer Lahl is the Founder and President of the Center for Bioethics and Culture. She spent nearly two decades as a pediatric critical nurse. Her expertise is in maternal/child health and assisted reproduction, especially third-party conception with surrogacy and egg ‘donation’. She wrote, directed, and produced the award-wining documentary, Eggsploitation as well as Breeders: A Subclass of Women?, and Maggie’s Story. In 2018, she released her latest film, #BigFertility, which explores one U.S. woman’s story of being a 3-time commercial surrogate. #BigFertility was an official selection in the 2019 Silicon Valley International Film Festival. 

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