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Establishes legally enforceable gestational agreements, e.g. “gestational carrier arrangements.” These agreements involve the placement of embryos in the wombs of women who are not the intended mother. The embryos could include gametes of a third party. Once born, the baby is transferred to the “intended parent or parents” as defined in the agreement. (The bill allows single persons to become the intended parent.) The contract allows for compensation of the birth mother by the intended parent(s). Objections: 1. Gestational and surrogacy agreements mean the state is redefining the concept of motherhood. The birth mother in such agreements is no longer the presumptive mother. Redefining the “birth mother” as a “gestational carrier” highlights this effort. Section 2, subd. 7. This attempts to depersonalize and marginalize the birth mother and her role. Under common law, motherhood was determined by who the birth mother was. Thus an important link in the process of motherhood is no longer necessary or recognized. Motherhood is now subject to contractual agreements entered into before the baby is even conceived. This is recognized by the legislation, which says the prospective gestational carrier “surrender[s] custody of all resulting children to the intended parent or parents immediately upon the birth of the children”. even though during the pregnancy she retains parental rights, unless she contracts them away. Section 5, (c)(1)(ii) Also, there is more to being a mother than a genetic link. The gestational mother is far more than an incubator. Deep bonding and an immense biological investment occur in the carrying of and giving birth to a child. Evidence suggests the gestational period contributes to the child’s personality. 2. State is encouraging redefinition of family creation. The state sanction of gestational agreements with compensation will result in more gestational surrogacy agreements. (SF 2965 eliminates reference to “husband” and “father” and replaces them with “partner”. In addition, cohabiting and lesbian partners of parties to these agreements are given parental rights. Sec. 1, subd. 1) Gestational surrogacy agreements encourage a woman to deny her inherent desire to give herself emotionally and physically to the child she is carrying. It encourages women to “erect an emotional barrier” between herself and the child, because she will turn over the baby she has carried to other people as soon as the child is born. 3. Baby selling will result. The collaborative reproduction agreement allows the intended parents(s) to “pay the gestational carrier reasonable compensation” which goes beyond legal, medical or other professional expenses. There is no limit on “reasonable” compensation. Sec. 5, (d)(3) The agreement is fundamentally structured around the transfer of the baby after birth. If the compensation was truly only for services rendered, then there wouldn’t be a legal recourse of specific performance by the intended parents if the birth mother refuses to turn over the baby. Failure of the birth mother to turn over the child would constitute breach of the agreement and the prospective parent(s) could sue to obtain the child. Sec. 5 (c), (ii) and Sec. 10 The transfer of the baby is intimately connected with the compensation; very few women would serve as surrogates if they were not compensated.
4. Promoting designer children. The intended parent or parents can use another egg or gamete, as the case may be, to create just the child they want. Section 4 (b) (2) 5. Destruction of embryos, i.e. human beings. Through the establishment of surrogacy markets, there will be more gestational and surrogacy arrangements, which means more embryo’s created for use in the process. There will be excess embryos that will then be destroyed or frozen. The new market incentives encouraging this practice mean more destruction of human life. Section 5 6. No requirement that the intended parent(s) be unable to have a child. The bill’s language does not require that the intended parent is unable to have a child. This opens the door to have a gestational arrangement for any “medical need” which is a vague term open to any interpretation. This shows the legislation is not even designed to help parents who can’t conceive. Section 4 (b) (2) 7.
These arrangements are not recognized by most
states and are specifically banned by other countries. European countries universally frown on
gestational and surrogacy arrangements, either through outright
prohibition or banning compensation. In the US, the states with
laws in this area generally treatment the contracts as void or
unenforceable or prohibit compensation. Only a handful allow
compensation. Two of
these states, Texas and Utah, limit them to married couples. This proposal is modeled on
the law in Illinois which is one of the most radical in the
nation. 8. Exploitation of women. Society recognizes prostitution as an exploitation of women for sexual purposes. Compensation of women for reproductive purposes also raises the issue of exploitation. 9. Safeguards in the legislation aren’t so safe. For instance the requirement that the birth mother have a mental health evaluation to insure fitness for the role. Ultimately, a doctor or counselor can be found who will agree to what the parties or individuals want. This requirement does not necessarily ensure that a prospective birth mother is qualified to serve as a surrogate mother. Section 4, subd.3. 10. Marriage is not required of intended parent(s). Section 4(b). This means the state is facilitating and encouraging more children raised without both a mother and father, e.g. more single parent, cohabiting opposite and same sex parent households. 11. “Best interest of the child” is not promoted by this legislation. Nowhere in the legislation are the rights and interests of the born or unborn child mentioned in regard to anything. For one, it’s clearly in a child’s best interest to have a mother and father, and that’s not required in this legislation. Second, a judge’s hands are tied by this legislation. According to the bill, “a court of competent jurisdiction shall determine the respective rights and obligations of the parties to any surrogacy agreement based solely on the evidence of the parties’ original intent.” Section 11(a) There is no judicial authority to truly determine what is in the child’s best interest in this legislation. 12. There is no requirement that the intended parent(s) are actually fit to be parent(s). There are no home visit requirements or evaluation of their ability to be fit parents. Sec. 4 (b). Remember, this bill does not require that all the genetic material must come from the intended parents. 13. Undermines the adoption process. Parental rights are now subject to transfer via a contractual agreement even before the child is born or conceived. This is a major departure from current practice and raises issues about the current adoption process, which allows birth mothers to decide whether to keep their child after the child is born. If gestational carrier agreements allow women to contract away parental rights prior to birth and conception, why shouldn’t women considering giving children up for adoption be able to do likewise? |
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