By: Kate Bauer,

Heart-warming stories of successful surrogacy arrangements permeate the media.[1] Jimmy Fallon, Nicole Kidman, Elizabeth Banks, Elton John, Amy Smart, and Sarah Jessica Parker are just a few of the celebrities who owe their children’s existence to gestational surrogates.[2]  Websites soliciting surrogates extoll the noble and generous “gift” a surrogate gives.[3]  Despite the rosy picture of altruism (for a price)[4] proffered by the success stories and websites, evidence suggests that these transactions prey on lower-income women with few alternatives.

Commercial surrogacy is a business transaction in which buyers rent a woman’s womb to gestate one or more babies.  In return for the rental fee, the woman agrees to surrender the babies she births to the buyers.  There are two types of surrogacy, traditional and gestational.  In traditional surrogacy, the woman’s own egg is artificially inseminated, making her the biological mother of the child she carries.[5]  Traditional surrogacy is generally disfavored due to the legal and emotional complexities involved.[6]  In gestational surrogacy, a child is created through in vitro fertilization (IVF) using the gametes of the buyers or third parties, and then implanted into the surrogate.[7]  A gestational surrogate is not biologically related to the child she carries.[8]

Policy arguments for and against surrogacy abound, but reliable information about surrogates is scarce.  Proponents of surrogacy emphasize a woman’s freedom to contract.[9]  Opponents contend that surrogacy contracts are characterized by unequal bargaining power and inability to accurately forecast costs.[10]  Missing from this debate is reliable information about the surrogates themselves.  Poor women and women carrying multiples are at greater risk of pregnancy complications and death than average,[11] yet anecdotal evidence suggests that these characteristics are common among surrogates.[12]

While the vast majority of developed countries have either banned surrogacy or limited it to altruistic arrangements (i.e. no fee),[13] the United States has no federal legislation regulating surrogacy. [14] State law is a patchwork.[15]  As a result, no reliable statistics are maintained regarding the women who become surrogates.[16]  Analysis of commercial surrogacy therefore rests on anecdotal evidence.  The anecdotal evidence paints a troubling picture.

In the United States, surrogate mothers generally earn between $30,000 and $50,000 to carry a baby to term,[17] though fees as low as $12,000 have been reported.[18]  This amount is just a fraction of the amount buyers invest in the process, generally $116,000 or more.[19]

Surrogacy agencies have revealed that military wives are popular as surrogates.[20] Though they account for just 1% of the population, agencies indicate that between 15 and 20% of surrogates are military wives.[21]  In some geographic locations, military wives make up 50% of the area surrogates.[22] This popularity provides insight into the characteristics that buyers find appealing in a surrogate.

Military wives make good surrogates for three main reasons: (1) they have few alternative job opportunities, (2) their husbands’ incomes are comparatively low, and (3) they have medical insurance.

Regarding lack of job opportunities, Melissa Brisman, who runs a New Jersey surrogacy agency observes, “[Military wives] move around a lot, so they really can’t get their teeth into a career, and if they want to contribute to society and do something useful, [surrogacy is] a good use of their time.”[23] A 2014 study corroborates Brisman’s assessment.[24] The Military Spouse Unemployment Report found that 90% of military wives were underemployed.[25]  Further, among wives 18-24 the unemployment rate was 30%, and among wives 25-44, the unemployment rate was 15%.[26] Study participants cited “frequent moves, deployments, living in areas with poor local labor market conditions, and long hours that keep service members from assisting with parenting” as factors that negatively impacted their employment opportunities.[27]

Low income is likely another factor driving military wives to surrogacy.  New enlistees in the Army start off making as little as $19,000 a year, while more senior enlisted individuals can make up to $37,000.[28] With standard surrogacy fees matching or surpassing yearly income and few realistic job alternatives, surrogacy begins to seem like an appealing option.

Lastly, the U.S. military offers numerous benefits to military families, including free healthcare.[29]  Women with their own healthcare are attractive to buyers of surrogate services, who otherwise must shoulder the surrogate’s medical costs as part of the agreement.  One surrogacy site, for example, expressly tiers its compensation according to whether potential surrogates possess their own healthcare.[30]  Women with health insurance are paid $5,000 more than their counterparts without it.[31]

The heavy utilization of military wives reveals characteristics of desirable surrogacy candidates: women with limited job opportunities, limited income, and minimal medical expenses. Further supporting this assessment is the ongoing trend of outsourcing surrogacy to India, where all medical expenses, including the surrogate’s fee, are available for $12,000.[32] These financial disparities between buyers and surrogates can give rise to unequal bargaining power in the surrogacy context.

Surrogacy contracts are another potential hazard to surrogates.  Due to lack of regulation, buyers employ lawyers to draft custom surrogacy contracts.[33]  These contracts commonly contain provisions requiring the surrogate to carry multiple babies (increasing the risk of pregnancy complications[34]), or to agree to abort one or more babies at the buyer’s request.[35] Though a woman cannot legally be compelled to undergo an abortion against her will,[36] some scholars have posited that the surrogate could be still liable for money damages for failure to comply.[37]  Fear of financial consequences and inability to afford independent legal counsel may coerce unwilling surrogates into honoring these illegal contract provisions.[38]

In addition to the risks of unequal bargaining power, the surrogate’s inability to reliably predict and value the damage her body may incur as a result of pregnancy is a pressing public policy concern.[39]  Individuals have a psychological tendency to underestimate negative consequences (“optimist bias”),[40] which may lead surrogates to irrationally discount the possibility of physical disability or death resulting from pregnancy complications.[41]

In the United States, the interplay between the optimist bias and the physical risks of pregnancy is particularly salient.  Maternal mortality in this country is the highest of any developed country, and rising.[42] The mortality risk is particularly severe for black women, who die from pregnancy-related complications at rate 3 to 4 times that of white women.[43]  Low income women and women in rural areas are also at increased risk,[44] as are women who are pregnant with multiples.[45]  With no official statistics on surrogacy, little data exists to validate the ability of surrogates to appropriately assess their risk of complications.

The risk of surrogate exploitation stands in stark contrast to the narrative of altruistic surrogacy that the media and surrogacy agencies strive to project.[46]  Though anecdotal evidence paints a troubling picture of surrogacy in the United States, little comprehensive analysis is possible without more information.  Collecting demographic data about the women who become surrogates, their pregnancy characteristics, and their maternal outcomes is vital to forming sound public policy regarding surrogacy arrangements.  It’s time to start paying attention to America’s surrogates.

 

[1] Graham Slaughter, Photo of Toronto Dads with Newborn Son Goes Viral, Toronto Star, July 3, 2014, https://www.thestar.com/life/2014/07/03/photo_of_toronto_dads_with_newborn_son_goes_viral.html.

[2] Jen Juneau, 32 Famous Families Who’ve Welcomed Children Through Surrogacy, People (Dec. 18, 2017, 6:55 PM), http://people.com/babies/celebrities-who-have-used-surrogates/.

[3] ART Parenting, About becoming a gestational surrogate mother in Virginia, http://www.artparenting.com/surrogate-mothers-virginia.html (“Becoming a surrogate mother requires a level of commitment that only a generous, capable and nurturing woman can meet. We know that raising children is one of the ultimate joys in life. A willingness to share that joy with others is truly admirable . . .”) (last visited Dec. 21, 2017); ConceiveAbilities, Becoming a Surrogate, https://www.conceiveabilities.com/surrogates/become-a-surrogate-mother (“Your desire to help intended parents build their family through gestational surrogacy is both generous and noble.”) (last visited Dec. 21, 2017); Modern Family Surrogacy Center, Become a Surrogate, http://www.modernfamilysurrogacy.com/page/become_a_surrogate (“Surrogate mothers provide an amazing gift for couples and individuals experiencing infertility. It takes a very special woman to become a Surrogate Mother. . . . Our Surrogates are generously compensated and are truly appreciated and admired for what they are doing.”) (last visited Dec. 21, 2017).

[4] Leslie Morgan Steiner, Who Becomes a Surrogate, The Atlantic, Nov. 25, 2013, https://www.theatlantic.com/health/archive/2013/11/who-becomes-a-surrogate/281596/.

[5] Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 470-71 (2015).

[6] Id. at 471.

[7] Id.

[8] Id.

[9] Molly J. Walker Wilson, Precommitment in Free-Market Procreation: Surrogacy, Commissioned Adoption, and Limits on Human Decision Making Capacity, 31 J. Legis. 329, 330 (2005).

[10] Id. at 329-30.

[11] Centers for Disease Control and Prevention, Pregnancy-Related Deaths, https://www.cdc.gov/reproductivehealth/maternalinfanthealth/pregnancy-relatedmortality.htm (page last updated Nov. 22, 2017); Centers for Disease Control and Prevention, ART and Multiple Births, https://www.cdc.gov/art/key-findings/multiple-births.html (page last updated Apr. 13, 2016).

[12] See Centers for Disease Control and Prevention, ART and Multiple Births, https://www.cdc.gov/art/key-findings/multiple-births.html (page last updated Apr. 13, 2016); see also discussion infra.

[13] Bruce Hale and Stephen Page, Whose Rights Are They, Anyway?, ABA SciTech Law., Summer 2016, 8, 10 (“The United States is alone among Western countries in affirmatively allowing women to be paid a fee to be a gestational surrogate.”).

[14] Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 486-87 (2015).

[15] Id.

[16] Ari Shapiro, Surrogate Parenting: A Worldwide Industry, Lacking Global Rules, NPR, June 11, 2015, https://www.npr.org/sections/parallels/2015/06/11/413406325/surrogate-parenting-a-worldwide-industry-lacking-global-rules.

[17] Circle Surrogacy & Egg Donation, Compensation and Benefits, http://www.circlesurrogacy.com/surrogates/compensation-and-benefits ($30,000-$40,000 base fee) (last visited Dec. 21, 2017); ConceiveAbilities, Surrogate Mother Pay, https://www.conceiveabilities.com/surrogates/surrogate-mother-pay ($35,000-$45,000 base compensation) (last visited Dec. 21, 2017); Modern Family Surrogacy Center, Surrogate FAQs, http://www.modernfamilysurrogacy.com/page/surrogate_faqs ($30,000-$50,000 compensation) (last visited Dec. 21, 2017).

[18] Elisabeth Eaves, Want To Work For $3 An Hour?, Forbes, July 24, 2009, https://www.forbes.com/2009/07/23/surrogate-motherhood-minimum-wage-opinions-columnists-elisabeth-eaves.html#3225102875ae.

[19] Morrissey, 51 Willamette L. Rev. at 483.

[20] Astrid Rodrigues and John Meyersohn, Military Wives Turn to Surrogacy: Labor of Love or Financial Boost?, ABC News, Oct. 15, 2010, http://abcnews.go.com/GMA/Parenting/military-wives-surrogates-carrying-babies-love-money/story?id=11882687.

[21] Id.

[22] Lorraine Ali, The Curious Lives of Surrogates, Newsweek, Mar. 29, 2008, http://www.newsweek.com/curious-lives-surrogates-84469.

[23] Astrid Rodrigues and John Meyersohn, Military Wives Turn to Surrogacy: Labor of Love or Financial Boost?, ABC News, Oct. 15, 2010, http://abcnews.go.com/GMA/Parenting/military-wives-surrogates-carrying-babies-love-money/story?id=11882687.

[24] Institute for Veterans and Military Families, Military Spouse Unemployment Report, Feb. 12, 2014 at 6, https://ivmf.syracuse.edu/wp-content/uploads/2016/06/MilitarySpouseEmploymentReport_2013.pdf.

[25] Id. at 6.

[26] Id.

[27] Id. at 4.

[28] U.S. Army, Army Pay Chart and Basic Pay: Active Duty Soldiers, https://www.goarmy.com/benefits/money/basic-pay-active-duty-soldiers.html (last visited Dec. 21, 2017).

[29] See, e.g., U.S. Army, Military Compensation: Army Benefits, https://www.goarmy.com/benefits/total-compensation.html (last visited Dec. 21, 2017), U.S. Navy, Military Pay, https://www.navy.com/joining/benefits/pay.html (last visited Dec. 21, 2017).

[30] Circle Surrogacy & Egg Donation, Compensation and Benefits, http://www.circlesurrogacy.com/surrogates/compensation-and-benefits ($30,000-$40,000 base fee) (last visited Dec. 21, 2017).

[31] Id.

[32] Abigail Haworth, Surrogate Mothers: Womb for Rent, Marie Claire, July 29, 2007, http://www.marieclaire.com/politics/news/a638/surrogate-mothers-india/.

[33] Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 516 (2015).

[34] Centers for Disease Control and Prevention, ART and Multiple Births, https://www.cdc.gov/art/key-findings/multiple-births.html (page last updated Apr. 13, 2016).

[35] Morrissey, 51 Willamette L. Rev. at 533; Jane Ridley, Confessions of a surrogate mother, New York Post, June 16, 2014, https://nypost.com/2014/06/16/as-the-demand-for-children-skyrockets-surrogates-speak-out/.

[36] See, e.g., Fla. Stat. Ann. § 63.213(3)(b); Tex. Fam. Code Ann. § 160.754(g).

[37] John A. Robertson, Precommitment Issues in Bioethics, 81 Tex. L. Rev. 1849, 1869 (2003).

[38] Brandy Zadrozny, Her Body, Their Choice: When a Surrogate Refuses to Abort, The Daily Beast (Dec. 19, 2015, 12:13 PM), https://www.thedailybeast.com/her-body-their-choice-when-a-surrogate-refuses-to-abort; Elizabeth Cohen, Surrogate offered $10,000 to abort baby, CNN, Mar. 6, 2013, http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/index.html.

[39] Molly J. Walker Wilson, Precommitment in Free-Market Procreation: Surrogacy, Commissioned Adoption, and the Limits on Human Decision Making Capacity, 31 J. Legis. 329, 329-30 (2005).

[40] Id. at 330-31 (“The optimistic bias relates to individuals’ tendency to underestimate risks or negative consequences down the road. In economic terms, the endowment effect captures the idea that people place particular value on goods that they already hold, and value them above other goods with equivalent market values.”).

[41] Morning Edition, Focus On Infants During Childbirth Leaves U.S. Moms In Danger, NPR, May 12, 2017, https://www.npr.org/2017/05/12/527806002/focus-on-infants-during-childbirth-leaves-u-s-moms-in-danger.

 [42] Id.

 [43] Centers for Disease Control and Prevention, Pregnancy-Related Deaths, https://www.cdc.gov/reproductivehealth/maternalinfanthealth/pregnancy-relatedmortality.htm (page last updated Nov. 22, 2017).

 [44] Morning Edition, Focus On Infants During Childbirth Leaves U.S. Moms In Danger, NPR, May 12, 2017, https://www.npr.org/2017/05/12/527806002/focus-on-infants-during-childbirth-leaves-u-s-moms-in-danger.

 [45] Centers for Disease Control and Prevention, ART and Multiple Births, https://www.cdc.gov/art/key-findings/multiple-births.html (page last updated Apr. 13, 2016).

 [46] See Juneau, supra note 2.

Image Source:  https://www.thestar.com/life/2014/07/03/photo_of_toronto_dads_with_newborn_son_goes_viral.html.