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“In 2019, no one should have to forfeit the joy of raising their child,” Bravo host Andy Cohen told reporters in Albany on June 11th, “not in an era where modern medicine is performing new miracles every day.” Cohen, the father of a five-month-old son born through surrogacy, was in New York’s capital advocating for the passage of the Child-Parent Security Act (CPSA), a bill that would have legalized commercial gestational surrogacy in the state.
Cohen is one of many celebrity parents who have recently made headlines for hiring a surrogate to carry a child. In May, Kim Kardashian and Kanye West’s fourth child Psalm was born via a surrogate. Psalm was the second of the couple’s children to be carried by a paid surrogate—a decision Kim announced after complications from placenta accreta. In January 2018, the couple’s third child, Chicago, was also born through the work of a surrogate. But Kim and Kanye aren’t the only celebrities who have employed gestational laborers: Gabrielle Union and Dwyane Wade’s daughter was born by surrogate late last year. Then there are gay parents like Cohen and Elton John who have both hired surrogates to expand their families. The sometimes breathless coverage of celebrities and their children has made it easy to forget that the ethics of surrogacy are still fiercely debated within the United States—and that debate still informs surrogacy-related legislation.
The United States is one of just 14 nations that explicitly permits women to be paid for their gestational labor. Paid surrogacy is a particularly American financial arrangement: It’s restricted in almost all other wealthy Western nations. In the United Kingdom and Canada, for example, only altruistic (unpaid) surrogacy is legal. The United States is an outlier and New York, where commercial surrogacy is illegal, is unusual even within the country. Only New York and Michigan criminalize paid surrogacy and refuse to enforce contracts for uncompensated surrogacy.
Recently, there’s been a move to change New York’s surrogacy laws, and Cohen’s appearance in Albany was part of an ultimately unsuccessful Democratic push to pass the CPSA. Though Democratic Governor Andrew Cuomo labeled the CPSA’s passage one of his legislative priorities, the bill never made it to his desk as the House refused to vote on the measure even after it passed the Senate. On June 20th, Assembly Speaker Carl Heastie, a Democrat from the Bronx, said: “Many members, including a large majority of women in our conference, have raised important concerns that must be properly addressed before we can move forward.” The CPSA had the votes to pass, but it was killed by an unlikely alliance: second-wave feminists and religious conservatives.
The CPSA had the votes to pass, but it was killed by an unlikely alliance: second-wave feminists and religious conservatives
Because of concerns about surrogacy, the bill faced opposition from Assemblywoman Democrat Deborah Glick, an advocate for gay rights who made history as the legislature’s first openly gay member. (This despite the fact that the CPSA included measures that would streamline the expensive and onerous process through which non-biological parents legally adopt their children—a major boon for working- and middle-class LGTBQ families.) Glick was joined by progressive Senator Liz Krueger, from Manhattan’s East Side District 28, who sided with Senate Republicans and voted against the bill.
Glick and Krueger’s opposition was spurred, in large part, by iconic second-wave feminists who, in early June, signed a letter opposing the CPSA’s passage. They cited concerns that the bill would “undermine women’s control over their bodies, thwart women’s reproductive rights, render women vulnerable to reproductive trafficking and exploitation, and further subordinate and harm women, especially those who are economically disadvantaged, in our State.” Gloria Steinem, Eve Ensler, and Susan Brownmiller were among the signatories.
The Catholic Church was also opposed the CPSA’s passage, but for entirely different reasons. To the church, surrogacy represents a sort of biological adultery, a corruption of marital fidelity that disrupts the “natural” order of family life. Through surrogacy, as many as five adults may have some parentage of a child—the intended mother and father, the gestational carrier, and egg and sperm donors. For the Catholic Church, this infringes upon “the child’s right to be born of a father and mother known to him and bound to each other by marriage,” and its parents’ right to “become a father and a mother only through each other.”
These two factions successfully tabled the bill (the state’s surrogacy laws remained unchanged). The failure of the CPSA reflected the contentious history of surrogacy as well as the debates that inform it, particularly the ethics of the inherently gendered labor of surrogacy, the regulation of a woman’s body, and the legal freedoms of women in, what feminists have called, the “reproductive marketplace.”
After suffering a devastating miscarriage and subsequently struggling to become pregnant, Texas-based writer Crystal Henry has firsthand experience with infertility, a common situation that can lead intended parents to seek out a woman like her. Married with two daughters, Henry’s family was complete, but she was happy to carry a child for another couple. “I’m not good with newborns, it’s so hard, I really love my sleep,” Henry tells me. “But I love being pregnant.”
She also says that she loved giving birth. “It was the most incredible thing I’ve ever experienced in my life—hands down. I wanted to do that again.” For Henry, working as a surrogate offered her both the opportunity to help a family overcome infertility and to experience pregnancy once more.
By the time Henry delivered a healthy baby girl for another family, modern American surrogacy was 40 years old. The first legal surrogacy agreement was drafted in 1976 by attorney Noel Keane, who, 10 years later, was behind the most famous contract in surrogacy history. Keane arranged for New Jersey couple Elizabeth and William Stern to pay $10,000 to Mary Beth Whitehead to carry and deliver a child for them. Whitehead was inseminated with Stern’s sperm, as was standard prior to the introduction of in vitro fertilization (IVF), and was the biological mother of the child identified as Baby M.
After the birth, Whitehead changed her mind about giving the baby to the Sterns and fled with the child to Florida before suing for custody. Though the Sterns argued that, per her contract, Whitehead had never intended to parent Baby M and knew she would be asked to surrender the girl, the New Jersey Supreme Court eventually ruled that Whitehead’s surrogacy contract ran afoul of adoption laws, including one regulation allowing parents to legally surrender a child only after it was born. The court found that surrogacy contracts were illegal but the Sterns were awarded custody of Baby M. In 1992, four years after the case was decided, New York adopted its surrogacy ban.
Whitehead’s legal claim centered on the fact that she was both Baby M’s biological and gestational mother. Well-known feminists like Betty Friedan and Grace Paley supported her, filing an amicus brief in 1987 during Whitehead’s ultimately unsuccessful appeal of the original custody decision. “As technology develops, the ‘surrogate’ becomes a kind of reproductive technology laboratory,’” the brief argued. “In short, she has been dehumanized and has been reduced to a mere ‘commodity’ in the reproductive marketplace.”
Few jobs demand 24/7, 40-week-long shifts, and few professions require a specific kind of body as its job site
Feminists were concerned that paid surrogacy would particularly exploit poor, non-white women. Whitehead was white but working class, and was described in the press the “wife of a garbage collector.” Elizabeth Stern was a pediatrician; William a biochemist. “Women bearing children for the rich is what slaves and serfs had to do for masters,” a 1987 article in feminist journal Off Our Backs pointed out.
To feminists of the Baby M. era, surrogacy promised to further degrade women’s reproductive labor. Katha Pollitt described surrogacy in 1987 as “a means by which women sign away rights that, until the twentieth century, they rarely had: the right to legal custody of their children, and the right not to be bought, sold, lent, rented or given away.”
Meanwhile, Andrea Dworkin linked her opposition to surrogacy to her objection to sex work. “Motherhood is becoming a new branch of female prostitution with the help of scientists who want access to the womb for experimentation and for power,” she wrote in 1983’s Right-Wing Women. But the two issues diverge in important ways: sex work is stigmatized while pregnancy, at least in middle-class white women, is celebrated. Much of the physical danger too often present in sex work isn’t necessarily inherent to the work itself and can be readily mitigated by circumstance or even decriminalization. But even in the hands of the most highly-trained medical professionals, pregnancy and birth are inherently risky—and for some women fatal—endeavors.
While most workers perform some form of labor for wealthier employers, surrogacy is unique. Few jobs demand 24/7, 40-week-long shifts, and few professions require a specific kind of body as its job site. And given America’s high maternal mortality rate—14 women out of every 100,000 died during or shortly after pregnancy in 2015—if gestation is work, it would constitute a job more dangerous than policing or firefighting with virtually no protections. After decades of feminist efforts to expand women’s role in society beyond biological destinies, surrogacy seemed to underscore outdated ideas about the innate purpose of women.
Both American surrogacy and American feminism have evolved since the ’80s. A Columbia Law School report on surrogacy found that, due to advancements in IVF, 95 percent of today’s surrogates are not genetically related to the fetus they’re carrying, and the resulting baby is likely to be the genetic offspring its intended parents.
Fears that poor people of color would fill demands for gestational laborers have so far proven largely unfounded; data on surrogacy suggests that most American gestational laborers are white, working- or middle-class Christians in their 20s and 30s. A majority have had at least some college education. Because of the nature of the work, surrogates are usually younger and almost always poorer than intended parents, the majority of whom are heterosexual couples struggling with infertility. While few surrogates fit the stereotype of desperate, easily coerced women, it’s still difficult to imagine a wealthy woman working as a surrogate. Henry, who like most surrogates wasn’t biologically related to the child she carried, told me she’s saving her surrogacy fee to help fund her daughters’ college educations.
Concerns for the children have also not born out. “Surrogate Motherhood Warning: Many Fear Future Identity Problems for Babies,” read a 1985 Los Angeles Times headline. But what research exists about the psychological profiles of children born via surrogacy has found that they generally fare just as well as other children. A grown-up Baby M, whose real name was Melissa Stern, told a reporter in 2014 that she was pleased to be raised by her intended parents. “I love my family very much and am very happy to be with them,” she said. “I’m very happy I ended up with them. I love them, they’re my best friends in the whole world, and that’s all I have to say about it.”
And the most attention-getting instances of surrogacy gone wrong—women deciding, like Whitehead, that they want to keep the baby—have been very rare. In a 2017 policy report urging the adoption of the CPSA Cornell researchers noted that less than “one-tenth of one percent” of the approximately 25,000 surrogacies that have taken place in America have resulted in custody fights.
When people asked her how she could give the baby away, Henry told them it was simple. “Have you ever babysat your friend’s kid and not wanted to give it back?” she asks rhetorically. “It’s pretty much the same thing.”
Meanwhile, some American feminists began to increasingly prioritize women’s autonomy and decision making. “There was a moment in the late ’70s and early ’80s where radical feminists and others were able to raise the concern about the commodification and exploitation of women as women,” says Lisa Ikemoto, a bioethics expert and professor at the University of California, Davis School of Law. But Ikemoto says that feeling has changed. “Now, the response is, ‘This is all about choice, it’s about individual agency.’”
Despite the relative lack of controversy that’s marked America’s commercial surrogacy market, almost none of our peer nations have embraced the practice. Among the world’s wealthiest nations, only Israel has similar surrogacy laws, including those allowing women to be paid for their labor.
“I think what we’ve seen in many ways is that the United States is not really a fully developed country,” says Barbara Katz Rothman, a sociologist who spoke out Whitehead’s behalf in the ’80s and who also signed the CPSA opposition letter. “So a lot of things that happen in the developed world don’t happen here.”
Critics of the European bans often cite the religious influences on the continent. “The main opponents to illegalizing surrogacy have been the Catholic Church and other religious groups,” says New York State Senator Brad Hoylman, a CPSA sponsor who had to cross the country with his husband to have children in California via surrogacy. And regressive, homophobic rhetoric is present in some of the European disdain for surrogacy: think of how ever-chauvinistic designers Domenico Dolce and Stefano Gabbana said in 2015 that they oppose “gay adoption” and called children born of surrogacy “chemical offspring” of a “rented uterus.”
But just as in the United States, many women’s rights activists in Europe are stridently anti-surrogacy. The Swedish Women’s Lobby, a non-partisan advocacy group in one of the world’s least religious nations, takes the position that “surrogacy is trade with women’s bodies and children, as well as a threat to women’s basic human rights and bodily integrity.” And in May, a French feminist group called for the European Union to pass legislation to ban surrogacy altogether. But neither the continent’s restrictions on surrogacy nor its ethical qualms about the practice have curbed demand. The number of British babies born via surrogacy increased eightfold from 2007 to 2016.
The trouble with bans on commercial surrogacy is that they haven’t prevented Europeans from having children via surrogacy: Instead of staying in-country, would-be parents head abroad. And while paid surrogacy in America hasn’t become the transparently abusive institution ’80s feminists feared, surrogacy is rife with exploitation in the nations where Westerners travel in search of bargain-basement gestational laborers.
India prohibited commercial surrogacy for foreigners in 2018 in the wake of horrifying reports of conditions women endured while serving as gestational laborers for wealthier international families, including overcrowding and isolation. Women with grade-school educations signed contracts written in English, and were forced to leave their families and existing children to wait out the pregnancies in maternity homes where they—and the valuable fetuses they carried—could be closely monitored. They had no control over the medical procedures they would undergo, nor were they given the choice to continue or abort the pregnancies on their own terms. Surrogates may not have even been informed that they were forced to undergo an abortion. Instead, they’d be given a pill, and would later be told that the resulting miscarriage was their own fault.
One woman, then six months pregnant with twins, told National Public Radio in 2016 that she turned to surrogacy after an accident rendered her husband unable to work. “I was helpless,” she said. “Whatever I’m going through, nobody should go through.”
Though India is no longer the destination it once was for global surrogacy, a pattern has emerged of poorer nations first experiencing surrogacy booms and then banning the trade after scandals. Thailand prohibited foreign surrogacy in 2015 after an Australian couple was accused of hiring a surrogate to give birth to their twins only to abandon one after he was born with Down Syndrome. (To make the horrifying story worse, the Australian father—who is still raising one of the twins—was later revealed to have a history of child sexual abuse.) In another controversial case, a Japanese IT heir fathered 13 babies with Thai surrogates.
Nepal followed with a 2016 ban, and today nations like Ukraine and Kenya are ascendant in the global surrogacy market. Reports of abuses similar to those seen in India have emerged from Ukraine. One woman described being housed with multiple other surrogates, forced to share a bed and go without hot water, and being “treated like cattle and mocked by doctors.”
While it’s expensive for intended parents to pursue surrogacy in the United States, where total fees can range from $20,000 to $200,000, the salary paid to American surrogates is proportionately smaller. The average of around $6,000 dollars that was paid to an Indian surrogate may have represented up to 10 times her annual income, while the $20,000 to $60,000 American surrogates earn on average is significantly less life-changing. Kim and Kanye, for example, reportedly paid a woman $45,000 to carry their daughter Chicago, a standard amount for an experienced surrogate.
“Our residents are going to other places where we could possibly be exploiting the surrogate,” Assemblywoman Amy Paulin, another sponsor of the CPSA, says. “So here, if we allow it in New York, we would ensure that surrogates would be protected and so would intended parents to a degree that you wouldn’t see anywhere in the world.”
American surrogates often say that they aren’t primarily motivated by money, but by the desire to help a family. “I was very, very lucky that it wasn’t something we needed anyway,” Henry says of her fee, which she calculated averaged an hourly wage of around one dollar—the low end of the scale—considering the time lost in travel, agency-mandated counseling sessions, and doctor’s appointments associated with the pregnancy. New York’s CPSA doesn’t mandate pay or minimum rates, but it does indicate that pay must be “reasonable” and “negotiated in good faith.”
It also preserves surrogates’ ability to make their own medical decisions, and contracts in the state won’t be able to restrict women’s abortion rights. But not states all ensure the rights and privacy of surrogates. “It’s not unusual in California to see contracts in which the surrogate agrees to not do [something] or undergo genetic tests, even though they may not be medically necessary. Or to not eat certain foods, or not participate in certain activities,” says Ikemoto. “Or even there are abortion clauses.”
Women in online surrogacy communities describe navigating the large and small mechanisms of control that arise when one’s body is a worksite, fielding everything from dietary requests to compensation for complications
One contract from Oregon required that a surrogate “[agree] to submit to any medical test or procedure deemed necessary or advisable by her physician or obstetrician, or requested by Intended Parents or [the surrogacy agency.]” In addition to abstaining from drinking, the surrogate was forbidden from changing litterboxes and having X-rays. For twins, she’d be paid $30,000, a fee that came close to $40,000 she made annually as a hairstylist.
Women in online surrogacy communities describe navigating the large and small mechanisms of control that arise when one’s body is a worksite, fielding everything from dietary requests to compensation for complications. It was widely reported that one of the surrogates hired by Kim and Kanye was forbidden to go in hot tubs, eat sushi, or drink more than one cup of coffee a day. Questions of “salmon reimbursements” and offsetting the costs for eating “all organic/gluten free” arise. These issues are fundamentally reflective of the broader concerns over what is effectively management of a worksite, but one without any of the standard regulations or protections. Surrogates must negotiate with intended parents over bodily autonomy, as well as the monetary value of their bodies. “Going over legal and I’m a little surprised that it states my uterus is only worth 5k in case I have to lose it all,” wrote one potential gestational surrogate in an online group.
Abortion is perhaps the most contentious aspect of gestational labor. Agencies try to pair surrogates and intended parents with all parties’ attitudes toward abortion in mind, but shaky compromises are sometimes made. “I’m pro-choice politically; I would never tell another woman what to do with her body,” says Henry, “But I personally couldn’t have an abortion, probably just because of what I experienced with my own miscarriage.”
Her intended parents, however, wanted the right to ask their surrogate to terminate a pregnancy, and in the end, Henry decided to trust them. “In another situation, I guess things could have gone south because if they wanted me to terminate and I didn’t, I could have been in breach of contract,” she adds. “I trusted them, and they trusted me, but you never know what could happen.”
In many ways, the CPSA is a model surrogacy bill, free of clauses, like intended parent marriage and infertility requirements, that can make surrogacy more difficult for LGBTQ couples and single parents to access. It also includes protections for surrogates—their fees must be held in escrow from the beginning of the process, and they must be able to select their own lawyers, to be paid for by the intended parents. Still, it’s hard to imagine that any bill could provide the full range of legal protections to women working in this sensitive field. And one prerequisite that other states have imposed that the CPSA lacks is that surrogates have completed a prior pregnancy. Henry was able to pursue surrogacy as a self-proclaimed “birth junkie” who knew she loved pregnancy, which wouldn’t have been possible had she never experienced it before.
“We didn’t make it this year,” says Senator Hoylman of the CPSA’s defeat, “but I’m hopeful that since we won one house we can win this second one next year.”
Surrogacy contracts make women’s bodies sites of negotiation, placing potential surrogates in a debate with parties who would like to tell them what they can and can’t do with their bodies
It’s unlikely that critics of paid surrogacy will back down. The practice represents a Pandora’s box—though slippery slope concerns, have, in America at least, proven unfounded, in our era of draconian abortion bans and manslaughter charges for pregnant victims of gun violence, it’s easy to imagine a future with increased surveillance and control of women surrogates.
“People have cameras in their homes to watch the person they hired to watch the baby,” Katz Rothman says. “You seriously think they’re going to let [a surrogate] go around pregnant and not pay any attention?”
The trouble, though, is that the box is already open. Despite the ban, women in New York have acted as surrogates. Henry told me of a New York surrogate who suffered severe complications as a result of her pregnancy, but because her contract was unenforceable, was left with to deal with her medical bills. “She lost her uterus and she will have lifelong problems that came from complications with that delivery. It’s affected her mental health,” Henry says. To her, an enforceable contract is the best protection. It “really protects everyone,” she adds. “I think by legalizing that you are telling women that they’re in charge of their own bodies. It’s my uterus.”
This question of autonomy divided the female legislators considering the CPSA. “It was a generational divide among the women,” said Paulin of the bill’s failure to receive an Assembly vote. “As one younger woman said to me, we either have to decide that women have control of their bodies or we don’t. But we should be consistent. So that’s what the younger women believe, but the older women didn’t.”
Surrogacy contracts make women’s bodies sites of negotiation, placing potential surrogates in a debate with parties who would like to tell them what they can and can’t do with their bodies. Supporters of surrogacy value their autonomy, but the ethics of selling autonomy are difficult to measure. “If and when surrogacy becomes more widespread in the U.S., [I’m not] worried about women being required to live in group homes,” Ikemoto says. “But, in a very subtle way, it affects our perception of what role women have in society.”
Gabrielle Bruney is a writer and editor from Brooklyn, New York.