Landscape shifts for surrogate motherhood

Modern technology for nearly two decades has made it possible for infertile couples to use the wombs of other women, known as surrogates, to have their biological children. But cultural changes, a crackdown in international surrogacy and high-profile endorsements from celebrities experiencing fertility issues, including Kim Kardashian and Tyra Banks, have resulted in increased demand for surrogacy in the United States.

Surrogacy involves contracting with a woman to carry a child conceived through artificial means, such as artificial insemination or in vitro fertilization. Many fertility companies recommend gestational surrogacy, where couples have their own IVF-manufactured embryo implanted into a surrogate mother, in order to decrease her likelihood of forming an attachment to the child she carried.

Patchwork of laws

International surrogacy arrangements have been popular because of the inexpensiveness of the procedure, compared to the United States. Whereas a surrogate pregnancy can cost $100,000 or more in the United States, similar arrangements would cost a third or less in countries like India or Thailand. In 2012, an estimated 20,000 children were born through international commercial surrogacy.

But beginning in 2015, the most popular countries for international surrogacy banned the practice: Thailand, Nepal, India and Mexico all issued instructions to prevent foreigners from using their citizens as surrogates. As these countries enacted new regulations, though, other countries, like Cambodia, become hubs for surrogacy tourism.

But the uncertainty of international surrogacy has made the United States a more attractive location for couples, despite the high price tag for an American surrogate. Jennifer Lahl, president of the Center for Bioethics and Culture, told Our Sunday Visitor that the closure of other countries to international surrogacy has “most certainly” led to an increase of the industry in the United States, because “we have very favorable and friendly laws here.”

Church's Concern For Those Seeking Parenthood
The suffering of unanticipated childlessness is real. Spouses may feel they have somehow failed, that they are inadequate in a basic aspect of their marital life. Their pain may even be aggravated by regret or guilt over past contraceptive use, sterilization, abortion, or other factors that can contribute to infertility. The sight of other couples’ children may make them yearn for a child all the more and add to their distress. Infertility can affect a couple’s sexual relationship and the stability of their marriage. It may even affect relationships with parents and in-laws who express disappointment at the absence of grandchildren. Catholic couples may feel this pain even more deeply as they hear the Church praise family life and teach that children are “the supreme gift of marriage” (Gaudium et Spes, No. 50).

In addition, Obergefell v. Hodges, the 2015 U.S. Supreme Court decision guaranteeing a right to marriage for same-sex couples, has removed in many states the barriers to these couples being listed as legal parents of a child, and many fertility clinics target their services to gay men looking to hire a surrogate.

The domestic fertility market, which the investment bank Harris Williams & Co. estimated at a value of $3-4 billion, lacks a coherent legal framework in the United States. In contrast to other western nations, there is little federal or state oversight of the industry, and laws vary among states.

“The surrogacy laws around the country are kind of a patchwork quilt,” Jason Adkins, executive director for the Minnesota Catholic Conference, told OSV. While some states like Indiana or New York prohibit surrogacy agreements because they are contrary to the public good, others like California enjoy a booming business in surrogacy.

Other states have recently passed legislation allowing for gestational surrogacy. Last year Louisiana Gov. John Bel Edwards, who identifies as pro-life, signed legislation recognizing surrogacy contracts for married, heterosexual couples. New Hampshire has passed even less restrictive legislation, as has the District of Columbia.

Fertility clinics thrive in states where surrogacy agreements giving all parental rights to the contracting couple can be enforced in court. In such an arrangement, the contracting couple are listed as the parents on the birth certificate, and not the surrogate mother who delivered the child.

Pushing back on surrogacy

In states like Minnesota, where the law has not explicitly guaranteed the parental rights of a contracting couple, the fertility industry has repeatedly sought “enabling legislation, not regulations of surrogacy,” Adkins said.

If states “create a legal mechanism by which contracts are honored and enforced, it really creates a legal framework for the surrogacy market to flourish and grow.”

As states continue to pass legislation supportive of surrogacy, Minnesota represents a rare bright spot for those opposed to contracting women to carry children. Adkins credits the state’s success to stepping back from an emotionally fraught legislative environment.

“You’re not going to have rational discourse in the context of a heated legislative environment in which people need to take votes,” said Adkins.

The state created a bipartisan commission to hear evidence on the issue during several months of meetings, and it issued its report in December 2016. While a bill to enforce surrogacy contracts was sponsored in the 2017 legislative session, it died in committee.

Adkins told OSV that while “the moral teaching is clear” from the Church on surrogacy, the issue fails to attract the same attention or coordination of resources as abortion and assisted suicide do, even though abortion frequently plays a role in surrogacy, through selective reduction of implanted embryos or requests by parents to abort children with birth defects.

“Sometimes we overlook the key life and bioethics questions that aren’t directly related to abortion,” he said, “and that’s a significant deficit in the national Church.”

Pastoral care needed

The desire to have children propels the surrogacy industry, which presents the Church with the challenge to do more to recognize and address the particular role that infertile couples have. Timothy O’Malley, a theologian at the University of Notre Dame and founding editor of Church Life: A Journal for the New Evangelization, told OSV that the Church is not providing enough pastoral care in this area.

“If you’re infertile as a couple, the only advice you’re going to get is from your doctor. No one in the Church is there for you, except for a couple of resources you might find online,” he said.

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For O’Malley, infertility can serve as a charism of authentic marriage because “in the Catholic imagination, marriage is not reducible to having children, but is really a conjugal bond of love shared between husband and wife.” While children are often a gift of that love, “there are a variety of gifts that are not reducible to having children, and the infertile can have these gifts whether or not they have children.” O’Malley said that parishes and dioceses can value the marriages of the infertile in the pulpit, but also address their needs through diocesan support groups.

“It’s not just saying, well, let’s fix it for you, it’s saying that not being able to have children can become a particular icon of love for the Church, and it can lead to adoption, it can lead to foster care, but it can also lead to other spiritual gifts and renewal that can take place.”

Nicholas W. Smith writes from New York.