States wrestle with legalizing payments for gestational surrogates

The battle over womb rights is brewing in Minnesota.

Last month, state legislators proposed a bill that would regulate gestational surrogacy — potentially adding legal oversight to fertility clinics that facilitate these pregnancies, when one woman carries a pregnancy for another.

Minnesota's surrogacy legislation and the debates that surround it echo the larger national debate on reproductive rights.

From state to state, these battles include advocates who oppose the idea of surrogacy altogether, along with those who think it should be a legal and viable option for building families. But even among supporters, a major sticking point remains about whether carriers should be allowed to accept payment. And if so, how much?

The Minnesota bill doesn't address compensation; a legislators couldn't come to agreement on the issue.

About 12 percent of reproductive-age women in the U.S. have trouble getting pregnant or carrying a pregnancy to term, according to the Centers for Disease Control and Prevention.

A small percentage of those women end up pursuing surrogacy arrangements, as do some men. In the early days, that meant that a woman would carry a baby conceived with donated sperm and her own egg. The practice led to plenty of controversy, including the 1988 case of "Baby M," in which a surrogate in New Jersey changed her mind and decided she wanted to keep the baby.

A flurry of legislative activity followed that high-profile custody battle, according to Kathleen Pontius, lead counsel of the Minnesota Senate Judiciary Committee, but not on a national level. Instead, each state has been left to decide how to regulate the practice, resulting in a patchwork of laws.

States vary widely in regulating surrogacy. While many states impose no restrictions, others, including Michigan, compensated surrogacy is against the law and contracts are unenforceable. Washington, D.C. goes a step further, imposing fines of up to $10,000 or as much as a year in prison for violating the law. Those punishments have also come under fire recently, with a bill proposed to eliminate them.

Even states that allow the practice offer a hodgepodge of rules on what is and isn't allowed. In Washington State, surrogacy is legal but carriers can't be compensated. In New Hampshire, intended parents must be married and at least one needs to provide sperm or eggs. In Louisiana, only heterosexual married couples can pursue surrogacy, only with an uncompensated surrogate, and they can't use donor eggs, sperm or embryos.

It can cost prospective parents $100,000 or more to fund the IVF and other procedures required for a gestational surrogacy.

In Minnesota, carriers can expect to receive $20,000 to $30,000, according to Steven Snyder, an assisted reproduction law attorney in Maple Grove, Minn., who is immediate past president of the American Bar Association's Assisted Reproductive Technology Committee. Those payments can rise to $35,000 on the East Coast and $45,000 in the west, Snyder says.

Parental rights aren't always assumed. In some places, intended parents must adopt the child as parents or stepparents. And in 31 states, including Minnesota, there are no laws regulating the relationship, according to a report published last year by the Columbia Law School. Since the heated days of the Baby M case, surrogacy practices have changed, says Julie Berman, director of the Minnesota chapter of RESOLVE: The National Infertility Association, a nonprofit education and advocacy organization. Today, the majority of surrogates are not traditional surrogates (like the woman who had Baby M) but gestational carriers, meaning they are not genetically related to the babies they carry. Gestational surrogacy is recommended by the American Society of Reproductive Medicine. The society's guidelines also recommend extensive physical and psychological screening tests for both the carrier and intended parents, as well as independent legal representation for all parties involved.

Doctors, lawyers and parents typically create a contract that considers all sorts of potential scenarios and expectations about things like how often the carrier will get check-ups or take vitamins. Five Minnesota IVF clinics work with gestational carriers, Berman says, and all of them follow ASRM guidelines.

"This is not something taken lightly, casually or quickly," Berman says. "It's an intensive process."

And it still doesn't happen often. In Minnesota, 30 babies were born via gestational surrogacy in 2014, according to the ASRM. Around the country, the number is about 2,000 annually, according to data collected by the Society for Assisted Reproductive Technology.

In Minnesota, which must decide whether to go ahead with the legislation this week or let the bill die without a hearing, opposition has come from a California-based organization called the Center for Bioethics and Culture network, which has been a vocal opponent to the practice of surrogacy nationwide.

The Minnesota Catholic Conference takes an ethical stance against the procedure and the potential for disadvantaged women to be exploited, says Jason Adkins, executive director of the organization.

"Surrogacy separates pregnancy from parenthood," Adkins says. "It undermines the right of every child to be conceived, carried in the womb, brought into the world and brought up within the context of a loving marriage between his or her parents."

"Women are not for rent," he adds. "And children are not for sale."

On the flip side, dozens of people spoke and wrote about the benefits of surrogacy to the Minnesota commission that reviewed the issue, citing their own happy endings. Support also came from Bruce Campbell, president of the Center for Reproductive Medicine, an infertility clinic in Minneapolis and St. Paul that performs the most IVF cycles in the state.

"I see little chance for abuse of this therapy as long as the procedures currently in place to screen for abuse are followed by physicians in this field," he wrote. "In the 23 years we have been performing these cycles, I cannot recall a situation which has caused me to question whether this therapy should be available."

The Minnesota bill garnered support from RESOLVE and ASRM, among others, which agreed on the need for regulation over a complicated process.

"We think women are perfectly capable of making informed decisions about how they make money or practice their reproductive lives," says Sean Tipton, a spokesperson for ASRM, whose headquarters are in Washington, D.C. "It's incredibly insulting to women to say, 'You can't make informed decisions about whether or not to take this on.'"

Opponents of payment say it makes women vulnerable to exploitation.

Berman argues that many carriers simply loved being pregnant and altruistically want to help others become parents. If their lawyers and doctors get paid to do their work, she adds, why shouldn't the carriers get compensated, too?

"At the end of the day, these are people who desperately, desperately want to be parents," she says. "These children are so wanted. This is about making babies. That gets lost in these discussions."

Emily Sohn is a freelance journalist in Minneapolis who writes regularly about health and science for Nature, the Washington Post, Discovery News and others. More at www.tidepoolsinc.com. Copyright 2019 NPR. To see more, visit https://www.npr.org.

Correction (2017-03-10 05:00:00 UTC):

An earlier version of this story incorrectly said a state commission in Minnesota recommended that carriers be able to accept payment. The commission didn't come to a conclusion on the issue. The story also previously said the state bill bars compensation. The bill is silent on compensation.