Opinion Time: why surrogacy should be legal, regulated, and fair

I have seen several really tragic stories in the news the last couple of weeks about surrogate pregnancies gone wrong. Very brief overview: one was a surrogate for two dads in the UK. They met through a Facebook group and had no written contract. The surrogate changed her mind and was advised by the owner of the Facebook group to lie to the dads and tell them she had miscarried. She carried the baby to term, claimed it as her own, and now the dads are fighting for custody. The other is about a paraplegic woman, an Israeli, whose niece carried a pregnancy for her. The baby was taken away and placed in foster care because surrogacy is only legal when the intended parents are a married husband and wife. The mom is now fighting for custody. The third is about a gay couple who hired a surrogate in Thailand. In Thailand, the surrogate is placed on the birth certificate, and the parents and surrogate must appear in court to get the birth certificate changed. The surrogate has gone MIA, refusing to complete the paperwork, so now the dads, the baby, and their older child are stuck in Thailand, unable to return to Spain where they live. In all three of these instances, the babies had absolutely no genetic relation to the surrogate, and in all but one (the woman in Israel), the babies were the biological children of one of their parents.

The common denominator here is that all of these surrogacies took place in countries that have outdated, discriminatory surrogacy laws or where surrogacy is largely unregulated. There are no protections in place for either the surrogate or the parents. I am not a lawyer, and I’m not going to pretend to understand the intricacies of surrogacy law, but I do have more first-hand experience with surrogacy than your average joe. Here is what I firmly believe: surrogacy must be legal, it must be regulated, and, in most cases, it must be done through a reputable agency.

Once I decided to become a surrogate, I did a ton of research on the various agencies in California. I chose one of the most established agencies with a long history of successful surrogacies which also happened to be the first surrogacy agency to accept gay couples at intended parents. The screening process for me was very rigorous: I went through a multitude of physical examinations and, perhaps even more importantly, several psychological screenings. My husband did the same. I was counseled on every step of the process, prepared for the emotional toll a surrogacy can take. My counselor was in constant contact with me throughout the process, especially at the end, when it was time for the babies to be born and to go home with their dads. When surrogacy is unregulated and done without a third party, there is no support for the surrogate. While what the surrogates in those stories from the UK and Thailand did was completely reprehensible, I must remind myself that these women had no one trained to counsel them through the process. I went into the experience completely prepared, with eyes wide open, with layers and layers of support, and it was still very difficult to say goodbye to those babes. I can only imagine what it would be like to enter into a surrogacy unprepared.

California has the best surrogacy laws in the country. Legally, the babies I carried were never mine. My contract stated that I had no parental rights, that the legal parents were, in fact, the babies’ parents. It even laid out next of kin by three degrees, should anything have happened to both of the dads. In addition to that, toward the end of the pregnancy, I was “sued for custody,” which was essentially just a legal document saying, once again, that I gave up parental rights and the dads were to have full custody from the moment of birth. Once the babies were born, both dads were automatically on the birth certificates. This legal process was easy and left no room for error or interpretation. All the parties involved were protected, and all our obligations were clear.

Bottom line is, when surrogacy is illegal or unregulated, none of these protections or support systems are in place, and someone is likely to get hurt.

So, what can we do about it? I, for one, will continue to tell people my story, to show everyone that surrogacy is a legitimate, safe way for people to grow their families. When I read horrid, judgmental, ignorant comments on a news article, I will respond respectfully and thoughtfully. I will teach my children that there is more than one way (or two or three) to create a family, and each is as beautiful as the next. Surrogacy became incrementally easier for gay couples with the SCOTUS decision to legalize gay marriage nation-wide, but there are still outdated, unfair laws across the nation and around the world. Children, surrogates, and parents alike are going to continue to be hurt if surrogacy is not legalized and regulated and if the laws continue to discriminate against certain kinds of family. Please help me spread the word about the beauty of surrogacy.

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One thought on “Opinion Time: why surrogacy should be legal, regulated, and fair

  1. Here are my feelings about the writer of this article. Jenessa is by far one of the most giving people I have ever met in my life. She is a hero and an inspiration for the world for traveling this path. She has shone good will, love, compassion, tenacity and success throughout the process. The word Mensch comes to mind but I do not feel it strong enough to represent the example she sets for all of us. Thank you for this writing and thank you for being the way you are.
    G

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