Log onto the website of any fertility clinic these days, and chances are you’ll see surrogacy offered on the “menu” right alongside induced ovulation, egg donation, in vitro fertilization, (IVF) and other assisted reproduction technologies (ART). However, for as talked-about as surrogacy is in the year 2016, the history of surrogacy shows just how little people understand it.
Take, for instance, the Biblical book of Genesis: “So after Abram had been living in Canaan 10 years, Sarai his wife took her Egyptian slave Hagar and gave her to her husband to be his wife,” (Genesis 16:3). Ten months later: baby. No contract, no money exchanged. If Hagar had any objections, she didn’t voice them. True, the vast majority of today's surrogate births involve fetuses conceived in a lab, not in a tent. But, rightly or wrongly, the idea of a woman choosing to give birth to a child she doesn't intend to keep continues to give rise to a swirl of questions surrounding the nature of motherhood itself.
And Leia Swanberg has heard them all.
“People think intended parents are looking for 'designer babies'; that genetically perfect child," Swanberg, a fertility consultant at Cobourg, Ontario-based Canadian Fertility Consulting, and a two-time surrogate herself, tells Romper.
And when it comes to the dystopian implications of surrogacy, you can’t ignore the impact of Canadian author Margaret Atwood's The Handmaid’s Tale, every 1980s feminist’s worst nightmare. In a postapocalyptic world where few women are fertile, those who can conceive are forced to become “handmaids” for the elite, which means they’re used as walking, talking wombs. Horrifying? Yes. But Atwood also forces readers to confront some agonizing questions about how far they'd be willing to go to have children.
In reality, very little surrogacy these days take place the “traditional” way (i.e., no turkey basters). "Traditional surrogacy has been largely replaced by gestational surrogacy, due to the safety and control of the latter," says Dr. Edward Marut of Fertility Centers of Illinois. Gestational surrogacy is done via in vitro fertilization (IVF) using either the mother's own eggs or a donor egg. This way, the surrogate has no genetic connection to the baby. Each year, about 750 babies are born via surrogate using this technique.
To understand why it's done this way, you have go back to 1987 — all the way back to Baby M.
A Precedent-Setting Case
In 1976, Michigan lawyer Noel Keane drafted the first surrogacy contract, which, 11 years later, led to Mary Beth Whitehead of Tenafly, New Jersey, agreeing to be paid $10,000 to be impregnated with the sperm of William Stern, the baby's intended parent (IP). But Whitehead, the baby’s biological mother, decided she wanted out. She took the girl on the run to Florida; Stern and his wife tried to swear out a warrant for her arrest in what sounds like the plot line to some soapy made-for-TV movie (and eventually became one).
Whitehead eventually had her parental rights restored by the Supreme Court, though the Sterns retained full custody. The fact that Whitehead was a former go-go dancer married to a garbage collector and the Sterns were a well-to-do professional couple is likely responsible for many of the misconceptions that surround surrogacy today, such as that surrogacy amounts to “baby selling” by Have-Nots to the Haves. Whitehead’s attorneys certainly worked to further those notions. One, Harold Cassidy, told New Jersey Monthly: “It was going to be a reflection on us. Are we a culture who says, in a civilized society, there are things that money can’t buy?”
The Baby M case is the reason surrogates in New Jersey (as well as Canada and most of Europe) cannot be paid. They can only have their medical care and related expenses reimbursed out of the fee paid by the IPs. That’s fine with them. “Most surrogates do this for completely altruistic reasons,” stresses Marut.
“When Whitehead signed her contract, she was promising something not in anyone's power to promise: not to fall in love with her baby,” wrote Katha Pollitt in The Nation when the case first broke.
It's cases like this that illustrate why surrogacy contracts are often hundreds of pages long, covering every possible complication or situation, right down to what the surrogate is allowed to eat (if an IP has a say). And what if there's something wrong with the child? What if, for whatever reason, the IPs want to abort the fetus? Will the surrogate have a chance to object? What if the surrogate wants to abort for health reasons, and the IPs don't? What if there's a medical emergency; who'll be required to pay for treatment? What if one of the parties wants to back out? Location matters, too. In some states, one or more of the IPs are required to adopt soon after birth, or the surrogate and/or her husband will be considered the child's legal parents. In other states, the IPs can get a pre- or post-birth order to declare them the legal parents.
You may think these situations rarely arise, but a quick perusal of the headlines proves otherwise. In fact, the M case was echoed in 2011 when a surrogate, Angelia Robinson, challenged a gay couple — one of whom was her brother — in court for custody of the twin girls she’d given birth to. She claimed she’d been coerced into the arrangement, basically, because she was broke. Like the Baby M case, the court awarded full custody to the father, but gave visitation rights to Robinson.
It’s why Swanberg is blunt with her clients. “You need a good lawyer,” she tells Romper. That fear of another Baby M is no doubt part of the reason Swanberg’s clientele uses 95 percent gestational surrogacy. “The legal lines are drawn more clearly since the embryo is not genetically related to the carrier,” explains Marut.
Believe it or not, situations have gotten even thornier than that. An Australian couple became international persona non grata in 2014 when they were reported to have abandoned their twin son with Down syndrome, taking only the other, unaffected baby. The twins' Thai gestational surrogate, Pattaromon Chanbua, couldn't afford to care for him, turning to GoFundMe to help pay her expenses.
In 2016, Justice Stephen Thackray ruled that he couple had not "abandoned" he baby and that Chanbua had clearly "fallen in love" with the twins. He said the case highlighted that “surrogate mothers are not baby-growing machines, or 'gestational carriers." They are flesh-and-blood women who can develop bonds with their unborn children,” he wrote. Gammy, as he was called, remained with Chanbua and was granted Australian citizenship.
In 2016, a gestational surrogate in the UK who had signed an agreement with a gay couple she met on Facebook succeeded in being awarded custody of the child she gave birth to. She had met them once in a fast-food outlet and agreed to bear their child for 9,000 pounds. She miscarried one of the twins she was carrying, and didn't tell the couple she was still pregnant. When they found out, they sued. The judged called the surrogate a “vulnerable young woman in her very early 20s of limited income” and someone who "had a learning disability." Nevertheless, he declared she and her partner were capable of better providing the child with a "happy and loving home" and awarded her full custody, giving visitation to the IPs.
It’s the old “womb for rent” trope; the idea that women who choose to be surrogates must be broke, desperate, and only doing it for the money.
These concerns are echoed in what was likely the first up-close encounter most millennials had with surrogacy: TV. On Season 5 of Friends, when Phoebe agreed to carry triplets for her brother Frank and his older wife Alice, it was only because actress Lisa Kudrow’s pregnancy had to be written into the show somehow. In “The 100th,” aired in October of 1998, Phoebe has a change of heart in the hospital and asks her brother to let her keep one of the infants she’s carried for 10 months. “Everyone said labor was the hardest thing I'd ever have to do, but they were wrong,” she tells the babies during her moment alone with them in the hospital room. “This is.”
Womb For Rent?
In reality, often times, surrogates don’t have as hard a time letting go as one might think, a 2002 study at City, University of London showed. In a study of 43 sets of IPs and surrogates, only one of the surrogates reported having any doubts about the birth, and 90 percent of the IPs reported having a good relationship with their surrogates even after the birth. Surrogates also use distancing techniques to make sure they don’t become too attached.
“Surrogates often come from the same demographics life as the intended parents,” she says. “They tell me, ‘I’m doing it because I had a gay uncle who always wanted kids,’ or ‘I struggled with infertility in my family.’”
When CNN ran a story on Tiffany Burke, a gestational surrogate carrying twin boys for her brother and his wife, the website received an avalanche of criticism from people crying, “incest!” The reporter had to write a follow-up patiently explaining, um, well, no.
"The public doesn’t realize that the carrier is rarely the biologic mother, and that the baby is really the product of the intended parent," says Marut. The stigma that some surrogates and IPs still face isn’t all from people unclear on the science behind it. Some critics feel that surrogacy is exploitation, pure and simple.
Swanberg says critics feel that “there’s a shift of power between [the surrogate and the] women who have money and can afford to pay for this child.” That’s right, it’s the old “womb for rent” trope; the idea that women who choose to be surrogates must be broke, desperate, and only doing it for the money.
Understanding The Economics Of Surrogacy
Jennifer Lahl, president of the Center for Bioethics and Culture and a pediatric nurse for 20 years, is a vocal opponent of surrogacy. She thinks too many people are rushing ahead to surrogacy without considering the consequences: medical, legal, and otherwise. “This is a contract; we’re discussing who ‘owns it’ — even though we’re dealing with a child,” she said back in 2013 when weighing in on a move by Washington, D.C. to legalize surrogacy in the district. By and large, she said, surrogate women “are women who have financial need — wealthy women are going to be buying the surrogacy contract.”
Blogger Rebecca Hamilton put it even more bluntly, calling surrogacy “the new prostitution.” She wrote on Patheos:
Swanberg wonders if the critics would feel the same way if they ever actually met a surrogate. “Surrogates often come from the same demographics life as the intended parents,” she says. “They tell me, ‘I’m doing it because I had a gay uncle who always wanted kids,’ or ‘I struggled with infertility in my family.’” Likewise, the IPs aren’t all from the gated-community crowd. Swanberg points out that they’re just as likely to be funding IVF through crowdsourcing, a second job, or borrowing cash from friends and relatives.
In October 2015, Idaho surrogate Brooke Lee Brown died of, according to her agency's Facebook page, an amniotic fluid embolism. A GoFundMe page merely cites a "rare medical complication." She was carrying twins who doctors put on life support for a brief period, but ultimately didn’t survive, either. An earlier nightmare in 2005 involved a British surrogate, Natasha Catalbiano, who died soon after childbirth of a ruptured aorta. Her mother tried to gain custody of the baby, claiming the IPs were undeserving because they were in their 50s and already had five children.
"Surrogacy caused Natasha's death," insisted Marilyn Catalbiano to the The Daily Mail.
Prompted by these tragedies, Lahl is now spearheading a campaign to crack down on lax surrogacy laws in states like Idaho, pointing out that few studies have been done on the specific health risks of surrogacy. The Canadian surrogacy authority lists dozens of scary complications, ranging from nausea to broken bones to placental abruption, but they're the exact same ones that any woman faces undergoing IVF — or even getting pregnant, period.
“The reality is that the health risks aren’t any different," says Swanberg. "The mother is going through the same process.”
She points a finger at the rise of "Octomom" Nadya Suleman, who gave birth to eight babies after being implanted with a dozen embryos, and other high-profile multiple births using fertility treatments. In 2012, a study published in British medical journal The Lancet recommended that women younger than 40 only be implanted with one embryo. Multiple embryos didn’t improve the chances of having a healthy baby.
At the same time, dozens of celebrities, including Lucy Liu, Nicole Kidman, Sarah Jessica Parker, Ellen Pompeo, Neil Patrick Harris, and Giuliana Rancic have made strides in boosting the visibility of surrogacy and dispelling the myths; even giving it a veneer of chic. “I’m excited,” Parker gushed to Access Hollywood in 2009 soon after she learned her surrogate was now pregnant with Parker's second and third children. “I’m in disbelief. I’m really grateful. I feel really fortunate."
But celebs, in using surrogacy, have also encountered painful legal tangles. In 2016, a Pennsylvania court ordered former The View host Sherri Shepherd to keep paying child support to ex-husband Lamar Sally for their son, who was born via surrogate and conceived using a donor egg (and thus was no genetic relation to Shepherd).
Shepherd told People that she wanted out early on in the process, but didn't speak up. "There are consequences to everything, but I was scared to say, 'That's not going to work for me. I don't want that.'"
Surrogacy In 2016
Whether openly or behind closed doors, surrogacy is growing. Current statistics on successful pregnancies are difficult to obtain, but in a 2010 report, nonprofit Council for Responsible Genetics assembled data from the Centers for Disease Control and Prevention and the Society for Assisted Reproductive Technology found that the number of births to surrogates nearly doubled from 2004 to 2008, jumping from 738 to 1,400. “These numbers, while only skimming the surface of the entire surrogacy market, will surely continue to rise,” the report predicted.
Clearly, one of the biggest metamorphoses in surrogacy in the past decade has been its explosion among gay parents, who now make up at least 40 percent of Swanberg’s IPs. As in most aspects of surrogacy, state laws are a patchwork; some still require the non-biological father to adopt the child at birth; some like Illinois and California, do not, making them attractive to would-be gay IPs.
Since surrogacy is the best — if not the only — way for a gay man to conceive a child, it’s surprising to find that even among the community the practice isn’t entirely accepted. Fashion designers Domenico Dolce and Stefano Gabbana created an uproar when they described the surrogate-born children of singer Elton John and husband David Furnish as “synthetic.” They wrote:
John fired back on Instagram:
Swanberg agrees. Considering gay marriage has been legal in Canada for a decade, “We don’t think of gay couples and straight couples anymore,” she said. “Just couples,” she said.
But perhaps the biggest leap forward in the history of surrogacy has happened in the past decade with the rise of “fertility tourism," which has until recently been centered in places like India, Thailand, and Ukraine. Each year in the UK, over 2,000 babies are born by surrogates, and a whopping 95 percent of these births take place overseas.
In 2005, Time listed "pregnancy" as number 1 on their list of "Top 10 Chores to Outsource." "Thought the world was flat before? Well, now you can hire someone in India to carry your child," wrote Jeninne Lee-St. John. When you look at the eye-popping costs of surrogacy, which can top $150,000, it’s not surprising that agencies like Sensible Surrogacy advertise rates at a mere 30 percent of that cost. Better, there are usually no long waiting lists. As Swanberg points out, the $6,000 fee a woman in India might receive for carrying a child can be “enough to lift her out of poverty,” she says, “or send her children to school.”
However, in 2015, the Indian government threw a wrench in the works by banning foreign surrogacy. Thailand quickly followed suit, but it didn’t put the kibosh on the practice; parents just moved down the road to still-unregulated Cambodia. Now, it’s clinics in Phnom Penh that claim to be fully booked for months. Astoundingly enough, the United States itself has a thriving foreign “womb for rent” business.
“Patients from countries that disallow paid carriers (or any form of surrogacy) travel to other countries and undergo treatment where it is legal, like the U.S.,” said Marut.
Tess Shawler, of Rocky Hill Mountain Surrogacy in Idaho claims to have found American surrogates for people from Australia, Canada, Spain, England, and Germany. The idea of a womb for rent is all relative.
Ultimately, Swanberg agrees that surrogacy, as it currently stands, is not perfect. Even when both parties are 100 percent onboard, challenges arise:
An organization she founded, Sacred Surrogacy, offers retreats that aim to teach surrogates techniques for meditation and self-care, helping them work through” this beautiful rite of passage in a way that honors themselves and honors the intended parents.”
Perhaps the future of surrogacy lies in looking beyond the womb.