Two Bits of News on Surrogacy Contracts
Every year, I teach the Baby M case as my transition case from illegal contracts to contracts that violate public policy. Interesting discussions ensue on the public policy front. Things get skewed a bit because Mary Beth Whitehead is not a sympathetic figure, even though I think most students recognize that the fertility clinic exploited her terribly. I suppose I could share Alex Kuczynski’s New York Times article from twenty years ago, about which I posted here, to create some balance. In any case, my sense is that most of my students think that surrogacy contracts are mutually beneficial agreements that should be permissible so long as they do not cross some line into taboo contracts. I also have some students who think that surrogacy is wrong. That view is much more widespread in Europe. So, first Europe and then taboos.
As Henry Moore and Bethany Bell report for the BBC, Jens Spahn has resigned as parliamentary group leader for Germany’s governing coalition after revelations that he and his husband had a child through a U.S. surrogate mother. Both Mr. Spahn and his party oppose surrogacy, and it is illegal in Germany. His party reaffirmed its support for a total ban on surrogacy in February. When Mr. Spahn was health minister in 2020, he resisted calls from the liberal Free Democratic Party calling for a relaxation of the ban.
Mr. Spahn is not accused of illegal conduct. It is not illegal in Germany to raise a child born through a surrogacy contract arranged abroad. He is accused of hypocrisy. And so he resigned. Imagine, a politician resigning after being exposed as a hypocrite!
Italy, Spain, and France all ban surrogacy, but the French Court of Cassation recently ruled that a child born from surrogacy abroad should be recognized as the child of the surrogate parents. Seems like institutionalized hypocrisy in both Germany and France, which enables more well-resourced people to get around the domestic surrogacy ban. Here in the U.S., we are way ahead of the Europeans when it comes to institutionalized hypocrisy, as evidenced by our tolerance for insider trading by members of Congress and the SEC’s silence in the face of a shockingly brazen insider trading scheme designed to enrich the President and his family by selling access to tips on Truth Social.
If you are looking for news of taboos, you have to choose Kim Krawiec and her Taboo Trades Substack. Her most recent post is about efforts in Texas and Florida to ban surrogacy contracts with nationals from “foreign countries of concern.” Florida enacted such a ban on July 1st through a provision of its new Foreign Interference Restriction and Enforcement Act. Texas held hearings a week later at which witnesses warned of the dangers of foreign nationals securing “the rights and privileges of American citizenship” through children born in the United States. As Professor Krawiec notices, the timing and the rhetoric in Texas make clear that this new legislative initiative is leftover moral panic after the birthright citizenship case in Trump v. Barbara. I tip my hat. Exerting this much energy on such a remote danger requires a level of obsessive thinking that I can only regard with astonishment.