Mo’ Surrogacy Contracts, Mo’ Problems

We have written periodically about surrogacy contracts, most recently here.  The potential problems that can arise in such contracts are innumerable, and as the regulations vary state-by-state, and as many surrogacy relationships cross state and even national lines, the potential problems multiply.

The latest issue that has grabbed attention is that of a pro-life surrogate, Melissa Cook, who was bearing three embryos when the man who was to serve as father to the children told her that he was out of money and that she should abort one.  As The Altantic reported back in 2016, Ms. Cook wanted to carry all three fetuses to term, adopt the third child, and collect her surrogacy fee.  She filed suit, alleging that California’s surrogacy laws violate the U.S. Constitution’s Equal Protection and Due Process clauses.  

Six years later, all legal avenues exhausted, Ms. Cook is still “consumed by anxiety” about the boys, according to The Economist.  She believes that the surrogacy broker who arranged the contract might have been unscrupulous in not properly vetting the father before allowing the agreement to be executed.   But as Katie O’Reilly pointed out in The Atlantic six years ago, citing CUNY’s Elizabeth Reis, “There’s no way to legislate people’s emotional responses.”  Among other things, the law can’t account for how all the people involved will feel about “reductions,” the practice of aborting a fetus when a surrogate becomes pregnant with twins, triplets, or more, in the interest of enhancing the likelihood that the fetuses will survive to delivery in good health.  This is a major issue because, as The Economist reports, “more than half the babies born in America to gestational surrogates are twins or triplets” 

As states struggle to regulate the surrogacy market, couples seeking surrogate mothers look abroad.  Some poorer states (Cambodia, India, Thailand) now prohibit surrogacy contracts.  Pre-war Ukraine was a surrogacy haven, with 2000-2500 children born there through surrogacy annually, according to The Guardian.  As we learned from Jeff Goldblum, “Life finds a way,” especially if contracts are available to help facilitate mutually beneficial transactions.

H/T Michael Gibson