Surrogacy in the United States


for presentation to the UN COMMISSION ON THE STATUS OF WOMEN– CSW 61
MARCH 14, 2017

The practice of commercial surrogacy in the United States is growing by leaps and bounds with every passing year. The media operates as the public relations arm of the fertility industry. The reality of surrogacy is ignored because of what it reveals. What is this reality? It is a predatory, profit-driven industry that preys on marginalized women, creating a breeder class for the wealthy, be they heterosexual or homosexual. It is women being subjected to life-threatening health risks to produce custom-made children. It is children intentionally severed from genetic and biological sources of identity, human rights be damned. In essence, it is the ultimate manifestation of the American neoliberal project of capitalist commodification of all life to create profit and fulfill the narcissistic desires of an entitled elite.

Surrogacy in the United States is governed at the state level; there is no national law on surrogacy and no regulation of either surrogacy or egg selling. The fertility industry in the US is a $4 billion extraction and manufacturing business modeled on the factory farming of animals in agribusiness where women are substituted for animals. The 50 states constitute a patchwork quilt of laws and regulations, ranging from practically anything goes such as in California and Connecticut to legalization with restrictions in states like Louisiana and Florida to legal bans in Michigan and New York. For example, Louisiana restricts surrogacy to heterosexual married couples using their own gametes. Any surrogacy arrangements outside of this are subject to civil and criminal penalties. It should be noted, however, that the various laws, regulations and penalties that do exist are often not enforced. Even in the states where paid surrogacy is illegal, they will usually recognize the buyers as the legal parents in post-birth orders. In same-sex surrogacies, most states list the buyers as Parent and Parent on the final birth certificate.

Surrogacy law, whether by statute or case law, has been moving inexorably toward legalization across the country. 92% of the states allow surrogacy with varying levels of regulation. Only 4 states (Michigan, New Jersey, New York and Washington) plus the District of Columbia, ban it. However, there is currently legislation in New York, Washington, D.C. and New Jersey to legalize commercial surrogacy and it is safe to say that it is only a matter of time before the legislation passes. In most states, surrogacy bills are written by profiteers such as surrogacy attorneys and brokers or gay legislators who have used surrogates to obtain children (New York and Washington, D.C. are examples of the latter). In every case where surrogacy is permitted but there is neither a statute nor a ruling from the state’s highest court governing the process, the question of pre-birth orders is determined on a county by county and even on a judge by judge basis, greatly complicating the whole process. [Editors note: a “pre-birth” order is a court action declaring the intended parents to be the legal parents of the child (thereby terminating the rights of the surrogate mother) and orders the hospital to put the intended parents’ names directly on the birth certificate.]

Laws and policies in the 50 states plus Washington, D.C. can be broken down into 4 basic categories from the most permissive to the least. The most permissive category applies to 8 states, meaning that surrogacy is legal, pre-birth orders are granted and both Intended Parents or buyers are named on the birth certificate. These are California, Connecticut, Delaware, Maine, New Hampshire, Nevada, Oregon and Rhode Island. The second category relates to states where surrogacy is allowed but with potential legal hurdles. These include Alaska, Arizona, Iowa, Idaho, Indiana, Mississippi, Montana, Nebraska, Tennessee, Virginia and Wyoming. The third category is the largest in which states allow surrogacy but with various legal complications such as post-birth parentage orders or other post-birth legal procedures. This group includes Alabama, Arkansas, Colorado, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Massachusetts, Maryland, Minnesota, Missouri, North Carolina, North Dakota, New Mexico, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Wisconsin and West Virginia. The fourth category constitutes the 4 states plus DC where surrogacy is currently illegal or a birth certificate naming the buyers as parents is prohibited.

Some of the complexities include venue (the county where the child is born, where the buyers live, or where the surrogate lives), whether hearings are required to obtain a post-birth adoption order, whether stepparent adoptions are required, and whether states recognize surrogacies that took place in another state.

The media in the US promotes surrogacy, advertising beaming parents and adorable babies while either ignoring or downplaying the blatant class exploitation and profiteering, the commodification of women and children, and the serious, even life-threatening short and long term health risks to women who sell their eggs or rent their bodies as surrogates. For example, the New York Times published a marketing article on surrogacy and placed it in the Style and Fashion section of the paper as if children were must-have accessories for narcissistic elites. Surrogates are presented in grossly offensive patriarchal stereotypes as selfless, giving women who exist to be of service to others.

A major issue of the US surrogacy industry is the use of so-called military wives as breeder stock. Depending on the area of the country, it is estimated that between 20 and 50% of surrogates in the U.S. are military wives. These women represent an ideal supply source for the industry. They are low income (between $16,000 and $30,000 per year) and a proven breeding stock as they tend to get married and have their own children at very young ages. The prospect of doubling their income by serving as a surrogate is a powerful incentive since most surrogates in the U.S. are paid between $20-25,000. They are further attractive to the fertility industry because military culture indoctrinates recruits with a service mentality so while their husbands are “serving” their country abroad, they can “serve” at home. Perhaps the most enticing feature of military wives is that they are assumed to be celibate if their husbands are stationed overseas; surrogates are instructed not to have sexual intercourse for the duration of the process (a gross violation of individual freedom and personal autonomy).

These women have few legal or regulatory protections, making them sitting ducks for exploitation and fraud. It is no coincidence that surrogacy brokers and clinics are concentrated in areas such as Texas, California and Florida where there are large military bases. As with ads for eggs in college newspapers on campuses, military publications such as Stars and Stripes and Army Times are filled with surrogacy broker ads. One could also point out that while the military heavily recruits from the working class and poor demographics, these people are doubly exploited for their reproductive capacities, in this instance by profit-driven private enterprise. Finally, there is the issue of taxpayer-funded Tricare health insurance, provided to members of the military, being used to cover the pregnancy and childbirth costs of surrogate pregnancies for contracting buyers.

Most American feminists are completely uninformed about surrogacy and it is simply not an issue for them. Even when educated about it, many are terrified of opposing surrogacy for three principal reasons. One is that the corporate media has very successfully portrayed opposition to surrogacy as only existing among right wing Christians who also want to ban abortion. Any association with those opponents is considered toxic. Secondly, most mainline so-called feminist organizations in the US have been co-opted by neoliberalism through a combination of funding and cultural conditioning. As with support for the gender identity movement and the prostituting of women and girls as “sex work,” the other side of the coin of surrogacy, objectification of women and the erasure of their rights becomes acceptable in an Orwellian inversion of reality. What these neoliberal phenomena represent are the marriage of capitalist commodification and the cult of the self. Thirdly, many American feminists have internalized patriarchal misogyny and place the desires of gay men over women. Since gay men overwhelmingly support surrogacy for their own selfish interests, it is seen as homophobic by many to oppose it. Such an accusation induces terror in many American feminists.

The only hope for stopping surrogacy is to form an international network of feminists and their allies who grasp the reality and live outside the corporate capitalist Matrix of exploitation and magical thinking. Left-right alliances with strictly defined boundaries offer the only possibility of stopping this juggernaut.

3 comments for “Surrogacy in the United States

  1. Kathy Scarbrough
    March 20, 2017 at 6:55 am

    Yes, the idea of left-right alliances seem to be cropping up a lot lately. The trouble is, although we agree on the outcome (in this case the end of paid surrogate parenting) we often come to that point from vastly different trajectories. As a leftist, I’m against surrogacy for all the reasons you’ve stated, its capitalist exploitation of vulnerable women reducing all women to the level of livestock. Many on the right are against surrogacy in the name of protecting conventional patriarchal families, complete with all the conventional notions of motherhood. Many rightists are against unconventional families and anything that would allow lesbians or gays to have genetic-related children. So how does one define boundaries under these conditions?

  2. Carol Hanisch
    March 20, 2017 at 2:01 pm

    Although I was pleased to see this rather daring and well-argued article, that last sentence about Left-Right alliances concerns me. Since the Right has a great deal more political power at the moment than the Left, how do we keep from getting screwed? What would the “strictly defined boundaries” look like and how would they be enforced? I do believe, however, the general public, minus many of the “individual choice” liberals, is on our side on such issues. We badly need further discussion on this strategy.

  3. Jen
    April 6, 2017 at 9:55 am

    I was thrilled to see something this detailed written on surrogacy, especially as, in discussions with feminists, whichever position they take, I’m often frustrated by a very moralistic approach towards the law. So it’s good to see something that takes into account the way legal frameworks interact. It’s also a global issue: in France for instance it’s currently illegal, but this doesn’t mean people don’t go to places where it’s legal, such as the US, Australia or the far East, in order hire a surrogate mother, and then come back to France with a child who, of course, needs to legally exist, so needs its filiation established in some way. And then, it goes beyond the legal framework, of course. So I follow the line of argument in this piece as far as it remains materialist.

    However, I depart from it when it loses its materialism. Like Carol and Kathy, I have concerns about the last paragraph and the idea of left-right alliances. Specifically, I especially have concerns with it in combination with the last but one paragraph. It’s not really possible to speculate on the selfishness or other supposed moral failings of gay parents, which parts of the right would be all-too happy to fill us in on. Gay couples are also far from the only parents resorting to surrogacy. I would definitely not condone a left-right alliance based on anything singling out gay men, or singling out women who sympathise with them for any reason as having internalised misogyny or generally clouded judgment. If anything, it would also place feminism under suspicion, as if it wasn’t already enough already, and reduce our scope for assessing the situation and formulating our own position on it.

    If I would absolutely not condone singling out gay men for scrutiny or making alliances with the right, I would especially not do so in the current political climate. It’s also not as if it’s been a good idea for the feminist movement in the past. Besides, right-wing positions are ultimately about preserving identity (family values, etc. which is what patriarchy is based on), so any alliance with the right would keep us on identitarian ground. If we’re to tackle this problem, it should be using left methodology and left epistemology, which will serve us better in any case.

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