Wombs For Rent: The Legalization of Commercial Surrogacy

[00:00:00] Reed Pence: Given the mysterious downward trend in U.S. fertility rates, surrogacy is quickly becoming a popular option for couples looking for an alternative. This method allows people to have a child that's genetically theirs. The caveat, another woman carries and delivers the baby in a process called gestational surrogacy. Today, this practice has been commercialized, meaning the surrogates are paid a salary in addition to the intended parents covering all medical costs. And as many countries have begun to outlaw commercial gestational surrogacy, states in America are just starting to legalize it.

[00:00:45] Taina Bien-Aime: Surrogacy is generally dangerous because all pregnancies have a tendency to be dangerous as a matter of health and fact. But the commercial surrogacy element of it really brings in third party exploitation for the profit of a few. And can lead to horrific abuses, including trafficking.

[00:01:07] Reed Pence: That's Taina Bien-Aimé, executive director of the Coalition Against Trafficking in Women. She's been an outspoken critic of the Child-Parent Security Act New York state passed in 2020 that legalizes commercial gestational surrogacy. Bien-Aimé says the law doesn't adequately protect the surrogate mothers, and since some women who become surrogates are in desperate need of an income Bien-Aimé doesn't believe their choice is given free and willing. A 2017 study published in Fertility and Sterility reviewed 104 gestational surrogates to get a sense of the average demographic. It found that nearly half of the women were unemployed.

[00:01:46] Taina Bien-Aime: It's almost like there's an absence of choice when you have to pay the rent or the mortgage, or you have to fend for your children and therefore you're going to sell parts of your body for, what? The average payment of a surrogate mother, for a surrogate mother, is anywhere between $16,000 to $30,000. So you see the economic inequality, the abuse of power, the abuse of vulnerability that really makes commercial surrogacy possible and profitable.

[00:02:22] Reed Pence: Dr. Linda Kahn says the potential for exploitation isn't the only concern. Gestational surrogacy increases certain health risks for the women carrying the pregnancy. Khan is an assistant professor at NYU Grossman School of Medicine. All of her opinions are her own and do not reflect those of her institution. She says, while a regular pregnancy always comes with risks, those threats increase with surrogate pregnancies for both the carrier and the baby.

[00:02:49] Dr. Linda Kahn: Commercial gestational surrogates are very often impregnated with more than one embryo because it's financially advantageous for the families who are contracting with them to get their money's worth. And this is not recommended in normal IVF. And yet it is tolerated in the case of commercial gestational surrogacy. Which is frankly unethical because the American College of Obstetrics and Gynecology says in black and white you should not be transferring more than one embryo in a pregnancy with a healthy, fertile woman carrying the pregnancy.

[00:03:23] Reed Pence: One reason is because there's a high risk of the embryos splitting into twins. Khan says twin pregnancies have higher incidents of premature birth and lower birth weight. Both conditions can have a harmful impact on the child's future. And though many surrogates are assessed for their physical health, Kahn says commercial gestational surrogates have a much higher risk of pregnancy complications than they should.

[00:03:46] Dr. Linda Kahn: These are women who've been vetted for this job. And one of the criteria is that they have in the past had healthy, uncomplicated pregnancies. They're very low risk for pregnancy complications, and yet we see a higher rate of pregnancy complications among this population than we do of other women of their age and fertility. So we know there's something about this process of commercial gestantional surrogacy that is putting the women at high-risk.

[00:04:17] Reed Pence: Some of it could be attributed to the twinning, but Khan says another factor is that the embryos have no genetic relationship to the surrogate.

[00:04:24] Dr. Linda Kahn: If you normally conceive or naturally conceive a pregnancy in a heterosexual relationship with a partner that you've been having a relationship for awhile, your body will tolerate that pregnancy. It's not going to attack the fetus, because it recognizes some of it as self. However, these women don't have any signal coming from that fetus that this is self. So, it's likely that their bodies are having some kind of an immune response to that pregnancy.

[00:04:49] Reed Pence: The immune response may not be strong enough to kill the fetus, but Kahn says it could increase the amount of inflammation in the body, a response that's known to trigger preeclampsia.

[00:04:59] Dr. Linda Kahn: Preeclampsia is when you have an inflammatory condition in your placenta, which is the organ that's communicating between you and the fetus that you're carrying. So biologically it's plausible that this heightened risk of pregnancy complications that we see among women who act as commercial gestational surrogates, who are otherwise completely healthy women, may be due to the fact that you're putting a completely foreign body inside of them.

[00:05:23] Reed Pence: But we can't know for sure because there's little research on gestational surrogacy, or even an egg donation. Kahn says the best data scientists have has been painstakingly collected by researcher Diane Tober. Tober has found substantial evidence of women having adverse health outcomes after selling their eggs.

[00:05:41] Dr. Linda Kahn: There is a lot of pressure to produce lots and lots of eggs would that may not be to the benefit of the person who's providing them, healthwise. And also they have to take high levels of hormones as part of the process, because normally our bodies produce one egg, maybe two, a month, not a lot. And these women are being stimulated to produce sometimes 40, 50, 60 eggs in a month.

[00:06:00] Reed Pence: The most data from egg donors is collected from the website weareeggdonors.com, where women voluntarily submit information about their experience. Many of these women report overstimulation of their ovaries, which Kahn says can harm their bodies when the eggs are extracted. So, is there a way to make commercial gestational surrogacy a safer process? Ashley Mareko is a three-time surrogate and works for SurrogateFirst, a commercial surrogacy company. Mareko believes companies should have accreditation programs to protect both the intended parents and the surrogates.

[00:06:35] Ashley Mareko: A surrogate can't be on welfare and food stamps and Medicaid. She should not be on any of those things. This should not be something to supplement or an income. It should not be considered a job. What it should be considered is more of, you know, you're doing this to help the family, but you're benefiting with this compensation for the pain and suffering. And being able to then, you know, use that for other plans.

[00:06:58] Reed Pence: Mareko's compensation made it possible for her daughter to receive extra help for her learning delays. She says SurrogateFirst make sure potential surrogates are healthy by looking at previous pregnancies, medical histories, and more.

[00:07:11] Ashley Mareko: From the agency standpoint, we really accept only 6-10% of the applicants, by the time we get through medical records and mental health evaluations, drug panels, the two months we spend with them communicating and educating. And I think that's why, you know, it's important to have those things in place.

[00:07:30] Reed Pence: But are all surrogates going through this same process? Do all women entering surrogacy understand the emotional toll of what the position entails? Khan says that once a woman signs a contract under the New York law, she must give the baby to the intended parents, no matter what.

[00:07:46] Dr. Linda Kahn: There've been the most horrendous stories. There've been stories of intending parents who've turned out to be child molesters. There've been stories of intending parents who've had horrendous criminal records. If the surrogate discovers anything like this, she still has no choice, according to this law, but to hand over that baby to those people by contract. She has no way of backing out of it. The only way she can back out of it is to terminate the pregnancy. That's the only right she retains, is to an abortion.

[00:08:17] Reed Pence: Bien-Aimé says this is a women's rights issue. She argues that our efforts to create gender equality have failed to include surrogates.

[00:08:25] Taina Bien-Aime: We're creating a class of women who are absolutely disposable, commodified, put on the marketplace for a limited amount of income and probably a lifelong journey of adverse health consequences, if she survives.

[00:08:43] Reed Pence: The Commonwealth Fund reports that the U.S. has the highest overall maternal mortality rate when compared to similar developed countries. Bien-Aimé says we don't know how many of those deaths are attributed to surrogate mothers.

[00:08:55] Taina Bien-Aime: The last two women who died as surrogate mothers, the only way we found out is because their husbands organized a crowd fundraising platform to pay for their funeral cost. So you see how economically strapped the family is. Everyone has a right to a family, but no one has the fundamental right to a biological family. So there is this desire--and this is not to take away from the enormous pain and suffering that infertile couples have to endure--we fully understand. But it's always, when we talk about rights, we'd have to see whose rights were violating.

[00:09:40] Reed Pence: Bien-Aimé says it's the role of the state to crack down on these violations and create rules to keep them from happening.

[00:09:46] Taina Bien-Aime: Do we live in a society where we're saying we are going to create a special class of women who are here to be put on a marketplace for the desires of the rich? And that's a fundamental philosophical question I think that certainly New York state and California doesn't care about.

[00:10:06] Reed Pence: A question that brings to light the legality of purchasing a body. Where's the line between selling organs and selling healthy eggs? What's the difference that makes it legal for women to rent out their reproductive systems but not the rest of their bodies?

[00:10:20] Taina Bien-Aime: The state has prohibited us from selling our organs, and we cannot have child labor, or we can't be in debt bondage just to survive. But somehow when it comes to women, there's always an exception to those overall policies.

[00:10:38] Reed Pence: An exception that's grabbed international attention. After the Child-Parent Security Act was passed, a UN expert on the sale and exploitation of children reached out to Bien-Aimé. The expert asked her to write a letter describing the law to be presented to the UN Human Rights Commission.

[00:10:54] Taina Bien-Aime: Her position as special rapporteur is that the children who are born of surrogate mothers are exploited and for sale, technically, right? So parents purchase the child, and not only purchase the reproductive organs and the eggs of two women, but they also purchased the child.

[00:11:14] Dr. Linda Kahn: And people don't even think about them in the sense that you're creating a person and that person has rights. And a person has rights, not just to not be put at risk from the time they're in utero, by say, for example, a part of a multiple gestation and having the risk of being low birth weight and preterm birth that will potentially lead them to have all kinds of complications for the rest of their life. But also in terms of their identity.

[00:11:37] Reed Pence: The passage of New York's law places them into a growing group of states that have legalized commercial gestational surrogacy. However, there are currently no federal surrogacy laws in place. You can find more information about Taina Bien-Aimé, Ashley Mareko, and Dr. Linda Khan on our website, radiohealthjournal.org. Our writer/producer is Kristen Farrah. I'm Reed Pence.