As my vacation winds down, I have been thinking about this article, which I’m sure many of you saw. (It was on the front page of the New York Times a couple of days ago.)
There’s been a lot of discussion about surrogacy here over the years (and I’m actually working on a more sustained law review type piece on the subject.) You all probably know that mostly I worry about the vulnerability of the surrogates. They are virtually always women who have less power, less money and less education than the intended parents.
While I haven’t written much about it, I know many people worry about the vulnerability of children conceived via surrogacy. No question that children are vulnerable. But all the studies I’ve read tend to show that children born via surrogacy don’t really fare differently than other children–which is to say that most do just fine. Nothing I’ve seen suggests that surrogacy per se is a problem in this regard.
Anyway, in general the people I’m the least concerned about are the intended parents–those who contract with the surrogates in order to become parents. And that is where this article comes in: It is clear that intended parents, too, are vulnerable, though perhaps not in the same way as the surrogates.
People contemplated surrogacy have, for the most part, really want children. Some of tried many other ways to become parents. Others–most, in fact–have invested a great deal of time, money and psychic energy in the process. They really want it to work–often they desperately want it to work. This makes them vulnerable, too.
And sadly, as the article makes clear, there are people out there ready and waiting to take advantage of them. There are unscrupulous operators who will prey on their need and desire.
I’m afraid that none of this is really remarkable. The world is full of unscrupulous operators. Think of all the people who apparently run scams after any natural disaster. Think of all the people who spend a lot of time figuring out how to take advantage of the elderly or those who are ill. What this means to me is that the fact that surrogacy comes with a risk of exploitation doesn’t mean that surrogacy needs to be banned. Instead, it needs to be regulated/controlled. And there need to be watchdogs.
As the article demonstrates, there are special problems when people travel to foreign countries to use surrogates. For all sorts of reasons they may be at an even greater disadvantage. And the countries may not have regulations/controls or effective watchdogs. (I suppose you get some of this even when people travel state to state within the US, but it seems to me substantially less of a concern.)
It may seem counterintuitive, but it might be that the solution to the problems exemplified in the article are to make surrogacy more readily available in the US, and to monitor surrogacy practices at the same time. You can see that this is what has happened in some places–like CA. (It’s not to say that there aren’t still scams–again the article makes clear that there are. But people do get caught and sent to jail.)
You’ll always have the problem of people who think they can get something cheaper by travelling overseas, and the only solution for that may be education. (In the end, it isn’t cheaper if you’re going to get ripped off.) But you won’t have the problem of people travelling in order to get something they cannot get here.
Maybe there’s nothing particularly insightful in this suggestion. It’s one that is made in many other contexts. And I suppose it is grounded in a certain pragmatism (you’re never going to eliminate surrogacy globally). It’s also premised on the notion that there is nothing morally wrong with surrogacy (a notion I know some would dispute.) But it seems to me that focusing on protecting the vulnerable–including the IPs–suggests moving in this direction.