Is a Surrogate a Mother?
February 17, 2016 10:01 AM   Subscribe

 
I don't think motherhood is governed by logic or rationality where you can draw lines and get people to follow. You can mother someone else's child and you become a mother. The law works great on certain areas, but not always. I can't pet sit anyone's animals because I'd get too attached. I do not know how someone does go through with it, but they can and do all the time. I do not judge, but I can't get my head around it.

But wow, what a Post-Progressive quandary. It sounds like a final exam question in an ethics class or some sort of screwball comedy. It is as messy, nearsighted, and convoluted as one could imagine. It is emotional anarchy and you know however this turns out, will only be the beginning, not the end. I think the phrase cascading catastrophe is appropriate in this circumstance.

Thank you for the link.
posted by Alexandra Kitty at 10:21 AM on February 17, 2016 [1 favorite]


One thing nobody is bringing up (that I would look into if I were the lawyer for the surrogate) is that the act of gestation in itself involves using the gestating woman's cells. The legal setup now is such that donated egg + sperm implanted in a third person means that third person isn't a genetic parent.

But given that the fetus is literally made from her body's cells, and that fetal cells in turn often stay in the gestating woman after birth, is that really true? I mean, I'm asking. I'm not a biologist or geneticist. But it seems like a doubt that someone looking to change the law might raise.

Then there's the not-trivial fact that surrogate contracts seem to violate a woman's right to choose whether or not to abort or selectively abort (and make other medical decisions) which seems like the kind of thing a contract should never be allowed to cover.

I feel for parents wanting kids with their own genes, but honestly, the more stories I read about surrogacy the more it seems like straight-out buying and selling (or renting, if you like) of women's bodies. Even done for a good purpose, with women willing to do it, this seems like a road that leads to bad places.
posted by emjaybee at 10:26 AM on February 17, 2016 [18 favorites]


"Cook, however, is opposed to abortion."

I realize that these are the cases that end up in court and so are not totally representative, but SO SO SO SO SO many of these cases involve a surrogate who's morally opposed to abortion who signs a (super-long, legalese-filled) contract where she agrees to selectively reduce upon the other party's request, and then surrogacy clinics that implant multiple embryos to increase odds of implantation despite everyone involved just wanting one child.

This has been a litigated problem in the surrogacy industry for more than 15 years (I follow legal and medical ethics on this issue super-closely because it FASCINATES me), and at no point has any surrogacy center started inquiring into the religious or moral beliefs of its surrogates regarding selective reduction/abortion, and at no point has any surrogacy center started highlighting the provision in the contracts it gives the surrogates (who are frequently unrepresented by legal counsel, or in the rare cases they're represented, they're represented by counsel paid for by the contracting parents or the surrogacy center) that demands reduction upon demand. THEY CAN'T GET SURROGATES IF THEY'RE UP FRONT ABOUT THE CONTRACT (and they deliberately "sell" surrogacy to religious women whose pro-life beliefs are part of what make them want to "create families" for others who can't -- they know who they're targeting), and they can't get contracting parents to pay for multiple rounds of implantations if the first one doesn't take, so they play the odds and don't QUITE outright lie, but totally rely on ignorance of the surrogates about the likelihood of selective reduction and the ignorance of the contracting parents about the likelihood that the surrogate will oppose such a reduction.

Also none of these places make the contracting parents escrow the funds (probably because most contracting parents don't have the money up front) which, given the frequency with which surrogates just end up NOT BEING PAID (because the contracting parents go broke or lose jobs or unexpected costs escalate or the surrogate has expensive medical problems or the contracting parents just change their minds and opt not to pay, and nine months is a long time in which a lot can happen), seems like the very bare minimum protection that any legitimate company ought to be providing its paid surrogates. Like, the surrogacy center can charge the parents in installments, whatever, maybe it will make them more responsible in their vetting, but non-payment by the parents should be the center's problem, who should be required to pay the surrogates regardless and should be insured to that extent and should be required to keep the money owed the surrogates in a trust or escrow account.

(I have many further opinions as a devoted reader of the utterly hair-raising legal literature on surrogacy contracts gone wrong, but I shall stop there. I understand that the cases that make it to court are the long tail of insanity and failure, but hooooooooly god does this industry need regulating.)
posted by Eyebrows McGee at 10:44 AM on February 17, 2016 [65 favorites]


non-payment by the parents should be the center's problem, who should be required to pay the surrogates regardless and should be insured to that extent and should be required to keep the money owed the surrogates in a trust or escrow account.

I guess I shouldn't be, but I'm shocked that it's not that way already. Holy cats.
posted by emjaybee at 11:00 AM on February 17, 2016 [5 favorites]


THEY CAN'T GET SURROGATES IF THEY'RE UP FRONT ABOUT THE CONTRACT
Sweet Jesus god this makes so much sense but it is absolutely skin crawling. Like, the selective reduction clause should be in bold print with a big box around it on its own page requiring a separate signature and probably also two thumbprints and a retina scan.

And also yes, escrow.
posted by telepanda at 11:27 AM on February 17, 2016 [11 favorites]


I'm not sure about surrogacy in general, but given that it's legal, I am not convinced that there is something wrong with women voluntarily signing stuff about abortion for the surrogacy (the adoptive parents also). It's a problem that the surrogate mothers are tricked into signing these contracts -- well, there are a lot of problems with surrogacy, as Eyebrows points out.

It's not difficult to think up a set of laws that would make surrogacy reasonable, but it's clear that those laws would put surrogacy out of reach of most people.
posted by jeather at 11:32 AM on February 17, 2016 [1 favorite]


Well, then so be it. If you can't get surrogates with the current terms if the surrogates aren't tricked into it, then you just don't get to have surrogates. The rights of the surrogates to be informed of their choices trumps the need to have them.
posted by Mitrovarr at 12:57 PM on February 17, 2016 [9 favorites]


Well gee, why didn't CM just go to one of the baby farms in a third world country. No need to worry about all these pesky ethical questions. Economic slavery tends to cut through all of that.

Of course I am being sarcastic and I have read articles where surrogacy agreements go awry, but I find it hard to believe that surrogacy happens here in the U.S. at all because of all the levels of messed up in the article above. Hiding the abortion clause does what? Are they going to abduct the surrogate, hold her down and abort a fetus because she signed it, or just ruin her financially? Does the agency get to walk away with the money and say, "well, we did our part". This is an industry that needs to be heavily regulated. The agency that organized this should be sued out of existence for its' hideous greed and heartlessness.
posted by Belle O'Cosity at 1:20 PM on February 17, 2016 [3 favorites]


Wow, this is completely horrifying. The clinic deliberately put her in a position where the physically "best-case" scenario, a robust pregnancy in which all the embryos developed normally, would directly result in her being told to go in and get an abortion done on what is, after all, still her body. You don't have to be opposed to abortion to flinch at the idea of being expected to let someone abort a fetus while it's inside you, even if you had no intention of parenting the potential child.

Also, it's pretty striking that the lack of a requirement to consider the children's best interests leads directly to the potential for twins and triplets to be permanently separated from birth. (Fraternal twins and triplets, if that makes a difference, but does it really?) When those two women who had been adopted by different families as infant twins made the news for finding each other via the internet, every article seemed to point out that it must have been a mistake. And yet here we are.
posted by ostro at 1:21 PM on February 17, 2016 [1 favorite]


Surrogacy, like prostitution, seems like something that would be perfectly ethical in a world without massive income inequality.

Based on friends who have donated sperm and eggs, it doesn't sound like those industries are much more ethical either. They all seem to rely on feeding donors half-information and the fact the donors need the money. It's worse in the case of egg donors and surrogates given the medical risks, but any of these things has long-term consequences for the donor.
posted by melissam at 3:28 PM on February 17, 2016 [5 favorites]


Way of the gun wasn't suppose to be a 'How To' movie...
posted by The Power Nap at 4:11 PM on February 17, 2016


Well, then so be it. If you can't get surrogates with the current terms if the surrogates aren't tricked into it, then you just don't get to have surrogates. The rights of the surrogates to be informed of their choices trumps the need to have them.

The only ways for two men to have a child together are adoption and surrogacy. Absent an altruistic friend or family member, they're left with commercial brokering for either system, and both systems are highly problematic when there's a profit motive. (Recent horrors.)
posted by gingerest at 10:31 PM on February 17, 2016 [2 favorites]


How safe is reduction anyway, for the mother and remaining fetuses? Anyone know?

And Eyebrows, great comment - I picked you as the author halfway through the first paragraph.
posted by Joe in Australia at 10:50 PM on February 17, 2016


The risk of spontaneously losing a higher-order multiple pregnancy is so high that "safety" is generally expressed in terms of the decrease in risk of losing the pregnancy, rather than in terms of the surgical risk to the mother or remaining fetuses - cf Table 5 here. Reducing from twins to a single pregnancy is relatively rare, absent fetal anomaly, because the risk from the procedure balances out the risk of a twin pregnancy - there are social reasons to do it, but not medical ones. (Twin pregnancies carry more risk than singleton ones, for mom and babies, but selective reduction doesn't seem to fix that - the twin effect sticks around.) Reducing triplets to twins or a singleton sits in between, but triplet pregnancies really are worse than twin ones, at the population level - the babies are born earlier, they are smaller even after adjustment for gestational age, they have higher likelihood of complications like cerebral palsy. Triplet pregnancies are harder on the mom, too.

Reduction is usually carried out by ultrasound-guided injection of potassium chloride, so the main risk to the mother and other fetuses is infection.

(ACOG's evidence-based opinion about MFR is here.)
posted by gingerest at 11:24 PM on February 17, 2016 [2 favorites]


Well, then so be it. If you can't get surrogates with the current terms if the surrogates aren't tricked into it, then you just don't get to have surrogates. The rights of the surrogates to be informed of their choices trumps the need to have them.

The only ways for two men to have a child together are adoption and surrogacy. Absent an altruistic friend or family member, they're left with commercial brokering for either system, and both systems are highly problematic when there's a profit motive.


Were you arguing that because this is one of the only 2 ways for 2 men to have children together that the practice should continue anyways? I didn't think so because you do argue that they are problematic but it does sound a bit like you're arguing that the needs of men to have a child trump the needs of the women involved in the childbearing process.
posted by LizBoBiz at 6:07 AM on February 18, 2016 [6 favorites]


I am not really arguing anything. Thinking aloud, more. On closer examination, there are two things tangled up in my comment, and I should have detangled them. The first thing is that adoption can be as coercive to the person who carries the child as surrogacy. The second is that although gay men with the resources to pursue commercial surrogacy are economically powerful, they are still, at base, members of a marginalized group, and are vulnerable in a way that equivalently resourced heterosexual couples are not. The narrative of surrogacy as a medical treatment for infertility-as-illness is problematic in a lot of ways, one of which is that it erases gay families.
posted by gingerest at 5:46 PM on February 18, 2016 [2 favorites]


I'm so glad that surrogacy for pay isn't allowed in Canada. I feel badly for gay couples that want children, but that doesn't justify exploiting members of other marginalized groups.
posted by peppermind at 3:36 AM on February 19, 2016 [2 favorites]




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