Once again I’ve been derailed, this time by a story about surrogacy this AM on Morning Edition. (I’ve linked to a text version but from there you can listen to it, too. The radio version is not identical to the text version.) It’s a thoughtful discussion of surrogacy. This post will make more sense if you listen (or at least read) first.
The most obvious taking-off point for me, given my last post, is the varying regulation people participating in surrogacy face. The story follows the work of Diane Hinson, who helps arrange surrogacies. There’s this map she uses. It shows the different laws in the different states, ranging from green to red. As Hinson notes, though, there are 24 (I think) states with no statutory law and no cases–which basically means no guidance.
Now it is hard for me to see what good can come of all this variety. It’s surely a trap for the unwary. And the map only covers US law. Surrogacy is, as the NPR story makes clear, a globalized business. This only adds layers of complexity.
Even the wary (like Hinson) could run into legal complications if a pregnancy takes an unexpected turn. In the radio version, there’s an account of a day that Hinson spent trying to ensure that a laboring surrogate remained in Maryland rather than being moved to DC. This mattered because surrogacy is illegal in DC and so having the surrogacy give birth there creates all sorts of potential problems.
This raised a question for me–one not discussed in the NPR stories: Who does Hinson represent? Who is her client and who does she work for?
This is one of the tricky parts in surrogacy. Because, as I think the story makes clear, surrogacy can work (and it most often does work) but it depends on getting the right people involved and the right match between them. (I’ve written about the hazards of DIY surrogacy, which typically is very short on screening.) Is this most likely to happen if you have matchmakers–whose interest is in making the deal? Or is this most likely to happen if you have representation for each of the parties? Or do you need both? The latter adds to the cost of surrogacy, of course.
At the very least there must be clarity about who a lawyer represents, and I’d imagine that Hinson is clear about that. Remember there’s a 55-page contract. I’m hoping that neither party signs that without someone–someone who has her/his/their best interests in mind–reviewing it with them.
This is not to say that surrogacy should be an adversary process. Obviously the surrogate and her family work with (and I strongly prefer “with” to “for”) the IP(s). But as they enter into the arrangment all the people involved need to understand what they are getting into and what they may encounter along the way. Maybe I’m stuck in an old model, but I’m most confident this will happen if each person has some sort of experienced counsellor who looks at things from her/their point of view.
Listening to the surrogates in the radio story is very valuable. As Jennifer Ludden (the reporter) notes, surrogacy usually works out fine. The press, however, tends to focus on the small number of instances where it doesn’t. That can leave us with a distorted picture.
It’s pretty clear to me, listening to the surrogates, that being a surrogate is a fine thing for some women. Not for all women–not by any means–but for some. These women are not exploited victims. They’re doing something they enjoy and they are being paid for it.
It’s been a long time since I’ve written about surrogacy here, but if you look under the tags for surrogacy (with various modifiers) you’ll find extensive discussions. As with so many aspects of ART it seems to me that surrogacy can be fine and it can be a nightmare. We ought to think about setting up systems that maximize the fine outcomes and offer us some predictability. I am not so naive as to think that we can do anything to guarantee that there will never be a bad outcome, but at the very least, we can shape what will happen when things do go wrong.
The NPR story is the first of three over the weekend. It will be interesting to see where it goes next.