The editorial “State needs clarity on surrogacy laws” (Feb. 14), espousing the legalization of commercial surrogacy in Minnesota, failed to do justice to the complexity and far-reaching consequences of this proposed change in our laws.
Pregnancy is the most intimate of human relationships. The nine months a child spends in the womb profoundly affects both the birthing mother and the baby. It is because of the depth of this bond that I and many other feminists oppose forcing women to bear children against their will by banning abortion.
Treating this mother-child relationship as a mere commercial arrangement does similar violence to the bond between them. Has there been any serious study as to whether this nine-month relationship is different if the woman provides the egg or is implanted with an egg from a donor? We do know that many adopted children suffer from the loss of their birth mother. But adoption helps children already born. Surrogacy arrangements purposefully create children with such a loss.
Minnesota has a long and well-thought-out experience in adoption, with agencies that understand the complexities of human relationships. If a childless couple can find a woman who is willing to bear their child for altruistic reasons, existing adoption laws can deal with issues that can arise.
The welfare of the child is the guiding principle in adoption. The birthing mother’s interests, including recognition that she is, indeed, a “mother” who might decide to keep the child, are protected. The fitness of both “intended parents” — who may in some circumstances have no genetic or prior emotional connection to the child — is reviewed.
In contrast, the practices of commercial contract law enshrined in the proposed surrogacy law are not a suitable model for the exchange of children.
In 2016 the Legislature appointed a commission to look into the surrogacy issue. The report came out against for-profit arrangements. It also includes recommendations on such matters as whether a birth mother can be forced by the contracting parties to abort a fetus, restrictions on multi-embryo transfers, etc. The Gestational Carrier Act (Senate File 707), which the editorial supports, ignores most of the commission’s recommendations.
Many American states, as well as countries such as Canada and in Europe, refuse to have any part in this industry. India, after extensive experience in being a surrogacy center, is pulling back, citing the serious exploitation of the women who have taken part in it.
Turning surrogacy into an industry is where the deepest problems arise. Once our laws permit people to exchange substantial sums of money for a baby, we have taken a definitive step toward the commodification of people. The human body is more than a piece of economic capital to be exploited at the best possible price by the owner.
The myth of the “happy hooker” making a good living out of selling her body is now known to be false. Minnesota recognizes that human trafficking is deeply exploitive and the sellers are in fact most often victims. Similarly, despite the pretty stories put forward by the fertility industry, cost alone ensures a large disparity in economic power between intended parents and the woman bearing their child.
No one is suggesting, in the words of the editorial, that “women are getting rich” off these contracts. Just the opposite — poor women are ripe for exploitation in these situations.
The editorial is disingenuous in setting up the opposition to surrogacy laws as simply the promotion of “certain religious or moral agendas.” Far more is at stake here. In our legal tradition, the value of the human person cannot be quantified.
Is Minnesota ready to legalize the selling of the human body? Are we ready to permit the commercial sale of human organs? In an economy characterized by deep and growing economic inequality, do we want to encourage or effectively force the poor to sell or rent the only asset they may have, their own bodies?
As we enter deeper into this brave new medical world where our bodies are seen as a collection of replaceable parts, and into an economic system in which everything has a price, we need to think seriously about the ethical ramifications of any such legal change. Where does it stop?
Pat Schaffer is a retired lawyer in Minneapolis.