The case of a little boy born in Texas last month exemplifies the human rights abuses that can happen with surrogacy, a growing business in the United States.
In early 2017, two adults hired a Texas woman as a gestational surrogate—a woman who carries an embryo not genetically related to her. It was the woman’s third time as a surrogate. Despite widespread media reports about the case and the involvement of local prosecutors, the surrogate and the parents have remained anonymous.
At a routine appointment 16 weeks into her pregnancy, the surrogate’s doctor noticed an abnormality in the unborn baby’s heart, and referred the woman to a specialist, according to WFAA-TV in Dallas. After an examination, the specialist told her the baby had hypoplastic left heart syndrome (HLHS), a birth defect that causes the left side of the heart to be critically underdeveloped. The baby would need heart surgery three to four days after birth, followed by two more operations later in childhood, but could go on to lead a relatively normal life.
When the surrogate informed the intended parents about the baby’s condition, they demanded she get an abortion.
“I was completely in shock. I truly didn’t have the slightest idea that would be asked of me,” the surrogate told WFAA. She said during the interview process the parents told her they opposed abortion. “I expected they would want to me to carry to term and treat the child. I expected we were all on the same page. I had no idea how much my life would change just a short 36 hours later.”
The surrogate refused to abort, and the parents stopped paying for her medical costs. As her due date approached, she began to worry whether the parents would allow the baby to have the life-saving surgery after birth. Surrogates by contract have no rights once a baby is born—in most cases, they are not allowed to see the baby after birth. The parents remained silent.
In the days leading up to delivery, the surrogate hired attorneys and contacted city and state agencies, hoping to advocate for the life of the baby she carried.
Doctors delivered the baby boy by cesarean section on Dec. 21 at Medical City Dallas Hospital. On Dec. 22, the Dallas County District Attorney’s Office confirmed the intended parents had agreed to do anything necessary to keep their baby alive and healthy. It is unclear whether the parents will keep the little boy or put him up for adoption.
The case has prompted calls for Texas to reevaluate its surrogacy laws.
But some experts argue regulating surrogacy is like trying to regulate slavery, or the sale of organs, because the process itself commodifies women and children.
“I believe that all surrogacy should be prohibited, not simply regulated,” said Jennifer Lahl, president of the Center for Bioethics and Culture. “Laws, regulations, and contracts cannot ever protect women and children from all of its many harms.”
Lahl told me efforts to write surrogacy laws to avoid situations like what happened in Texas are ineffective because the law cannot regulate the endless ethical complexities that come when a new life is initiated by a legal contract, the exchange of money, and a rented body. Instead, she said, the law should abolish surrogacy.
“When you read these contracts, you find all kinds of horrible do’s and don’ts that these women agree to,” said Lahl, noting the intended parents basically feel like they have bought the surrogate’s “whole entire body for nine months.”
The contracts often dictate the surrogate’s diet, travel, exercise, living arrangement, and activities. They almost always include a “termination clause,” requiring the surrogate to agree to abort the unborn baby, or babies in the case of multiples. One surrogacy contract Lahl reviewed said the right of the parents to request an abortion “is absolute and does not require any explanation or justification to the surrogate.” Lahl has also reviewed contracts that prohibited any form of bonding between the surrogate and the child (which is impossible to prohibit), and one that required the surrogate surrender her end-of-life decision-making power to the intended parents.
In most states, contracts like these are legal. Only a handful of states—including Michigan, New York, and New Jersey—have outlawed commercial gestational surrogacy, but many of those states are trying to change their laws to permit the booming industry.
Advocates argue surrogacy is a contract between consenting adults, an arrangement that offers the gift of life to couples who are infertile.
But Lahl and others are pushing back, arguing laws should protect vulnerable people by criminalizing certain exploitative contracts. For example, consenting adults today cannot contract for the sale of organs or sex, so they should not be able to contract for a womb, or the baby growing in it. And more than just consenting adults are involved—a baby produced by surrogacy can never consent.