New York State Senator Krueger has introduced a proposed bill--Bill S07717--to legalize commercial surrogacy contracts in New York State (the "Krueger Proposal"). The Krueger Proposal attempts to provide greater protection than the Cuomo Proposal to women who would serve as surrogates and egg providers, by reducing the health risks that they would be permitted to take on. The Krueger Proposal also attempts to provide more protection to children conceived in surrogacy transactions, by introducing some screening of intended parents and also prohibiting certain types of super high-risk pregnancies that so often result in children being born prematurely, and at risk of profound health deficits. The Krueger Proposal would also make it less likely than the Cuomo Proposal for New York State to become a hub for "reproductive tourism," given the stricter residency requirements it would impose.

But there are still a number of ways that the Krueger Proposal falls short of what is needed in order to ensure the health and well-being of would-be surrogates, egg providers, and children conceived as a result of their "services." Here are some of its major flaws:

 

By permitting inherent conflicts of interest to exist, the Krueger Proposal undermines a would-be surrogate’s right and an egg provider’s right to independent legal counsel and to uncompromised health care.

 

As long as those whose livelihood or income depend upon commercial surrogacy contracts and egg donation contracts being successfully arranged and consummated, there is an inherent conflict of interest in assigning to them primary responsibility for ensuring that the interests and well-being of women who would serve as surrogates and/or egg providers are given first priority and are being met. The lawyer whose livelihood depends on referrals made by surrogacy agencies, egg donation clinics, and intended parents cannot, as a practical matter, afford to displease these parties, even when he has a duty to represent the best interests of  a would-be surrogate or egg-provider (the latter of whom--realistically--will never provide the lawyer with lucrative referrals). 

The same inherent conflict of interest exists with any health practitioner or medical clinic whose livelihood or profits also depend upon referrals made by surrogacy agencies, egg donation clinics, and intended parents. Their income also depends upon commercial surrogacy and egg donation contracts being successfully arranged and approved, and not on whether they have given the would-be surrogate or egg provider their best care. Given current commercial surrogacy practices in the United States--where fertility doctors who know very well the profound health risks involved, still agree to implant multiple embryos into women's wombs in 85% of commercial surrogacy transactions--it is obvious that the health and well-being of the surrogate woman is only of secondary importance to them. Similarly, where fertility doctors who know very well the health risks involved, agree to inject healthy young women with toxic hormones in order to harvest excessive quantities of eggs-- it is obvious that the health and well-being of the egg provider is only of secondary importance to them.

The only way to eliminate these conflicts and the harms that would invariably result from them would be to have surrogates and egg providers be represented exclusively by lawyers and health practitioners whose income is not in any way dependent or enhanced by these types of referrals—i.e., lawyers and health practitioners employed by a state agency or a not-for-profit, who have no other interest than that of protecting the health, safety, and rights of  would-be surrogates and would-be egg providers.

 

The safety mechanisms—background checks and screening --remain inadequate.

 

Although background checks and home visits are a welcome addition in the Krueger Proposal, they fall far short of what is needed where they are not required to be conducted by state agencies or disinterested third parties, and/or with the same degree of vigilance and thoroughness as those imposed on parents wishing to adopt children. Access to all of the information needed to complete a thorough background check may be impossible to come by when undertaken by a nongovernmental person, as in the case of data contained in child abuse registries, for example, or other important but non-public data banks. By allowing these background checks and home visits to be conducted and approved by parties with a financial self-interest in the outcome undermines the protection they are meant to provide.

 

Health risks to would-be surrogates and egg providers remain unacceptably great.

 

By permitting a woman to enter into a surrogacy agreement, even when she has already served as a commercial surrogate three times previously, which almost by definition means that she has already previously been subjected to three courses of intense hormone drug injections, the Krueger Proposal allows her health to be gravely jeopardized.  Similarly, by permitting a woman to enter into an egg provider contract, even when she has supplied eggs pursuant to such contracts on four previous occasions--which again we know to be dangerous, given the drugs used in ovarian stimulation and egg transfer—also allows her health to be gravely jeopardized. 

The medical procedures involved in surrogacy and egg retrieval transactions remain high risk to women, and violate the fundamental medical principle-- “First, do no harm” --which should prohibit subjecting healthy women in entirely elective, medically risky procedures that not only fail to benefit their health in any way, but inflict upon them grave risks of harm, sometimes leading to their death. 

 

“Informed consent” by would-be surrogate mothers and egg providers remains impossible, given the dire paucity of research documenting the health risks they face. 

 

We know that the health risks faced by surrogate women are greater than those involved in traditional pregnancies and standard IVF pregnancies, by virtue of the fact that the medical literature conclusively demonstrates increased health risks in egg-donor pregnancies as well as pregnancies involving multiple fetuses, both of which typify surrogate pregnancies.  But there are still virtually no studies that address either the short-term or long-term health risks involved in surrogacy pregnancies, per se, just as there are no studies that address possible severe health risks faced by egg providers.

Unlike infertile women who are considered patients, surrogate mothers and egg donors are treated by the fertility medical community as vendors. When they walk out of a fertility clinic, no one keeps track of them. None of the harms they experience either short-term or long-term are reported, and so the short-term and long-term risks of surrogacy pregnancies and egg donations remain unknown, therefore making truly informed consent an impossibility.

Only studies sponsored by independent researchers, the government, and other responsible entities can provide the evidence that is currently lacking. But nothing in the Krueger Proposal requires these kinds of studies to be undertaken before exposing women to the risks they face as would-be surrogate mothers or egg providers. 

 

By failing to require the collection or tracking of any data that could document health risks to would-be surrogates, egg providers, and any offspring, and by permitting surrogacy and egg provider contracts to contain onerous non-disclosure provisions, the Krueger Proposal ensures these risks will never be exposed or see the light of day.

 

By making data collection and tracking voluntary, and by not requiring data on long-term health complications to be collected and tracked, the magnitude and frequency of health risks to surrogates and egg providers will remain undocumented and unknown, including their mortality rates. 

It's worth pointing out that unlike the tobacco industry, where only the tobacco companies themselves had a motive to thwart research into the harms of smoking, in commercial surrogacy and egg donation realm, that same motive to thwart research exists in many more of the actors involved. University medical schools and hospitals with fertility clinics that enjoy enormous revenues from the very lucrative and rapidly growing surrogacy industry are not inclined to spend any research dollars studying the harms involved in surrogacy or egg retrieval (which likely accounts for why very few studies exist). 

Likewise, where surrogacy contracts and egg donation contracts engage numerous lawyers to represent all of the different parties to the contract sand thus create a lucrative and broad-based attorney practice, the American bar association also lacks the motive to understand or address the harms involved in these medical procedures. 

We all know that it is human nature to avoid killing the goose that lays for them the golden egg.  And of course, the surrogacy and gamete clinics themselves have no wish for information regarding the harms related to surrogacy and egg donation ever to see the light of day. By failing to make data collection and tracking compulsory, we will never make headway in understanding and documenting, with greater accuracy, the harms to women and children involved in surrogacy and gamete provisions.

 

The Krueger Proposal fails to deter or prevent surrogate children from being abandoned by contracting parents who decide not to take custody or provide support after all.

 

Although the Krueger bill requires intended parents to take immediate custody of any/all children resulting from a surrogacy contract, regardless of their number or condition, and to be responsible for their maintenance and support immediately upon their birth, what happens if/when the intended parents change their minds and decide not to take custody? Unfortunately, experiences from around the world and in our own country demonstrate that it is not at all uncommon for intended parents to decline to take custody of the children they contracted for, when they find out that instead of the one child they wanted, there are triplets on the way, or when they learn that the children they contracted for have physical or mental deficits, or end up being the less-preferred gender. 

When they learn that the children they’re bringing into the world are unwanted by the intended parents, surrogates invariably feel enormous guilt and anxiety, and often feel compelled to step in as parents themselves, even though they can't afford any more children. But where the surrogate can't or won't take custody of children when the intended parents opt out, the responsibility for the care of those abandoned children is left to the state's already over-burdened foster care and social service agencies. The state can presumably sue the intended parents for maintenance and support--again and again over the lifetime of the abandoned child if need be. But these suits are expensive and don't often result in an abandoned child--especially a child with physical deficits--finding a loving home and family. 

Without punitive sanctions being put in place to deter or punish intended parents who decline to take custody of the children they brought into the world, or who fail to maintain and provide for them over their life-time, New York State will have to deal with caring for potentially hundreds and thousands of these children—often with health deficits—without having adequate resources to do so.

 

The Krueger Proposal fails to provide adequate health insurance for surrogate mothers and surrogate children.

 

Although the Krueger Proposal contemplates that health insurance for would-be surrogates, as well as premiums and deductibles and out-of-pocket expenses related to their pregnancy, are to be paid for by the intended parents, the intended parents are left with the option of paying all of these expenses through reimbursement rather than directly or in advance. But what if something goes awry and an intended parent chooses not to--or is no longer able to—reimburse a surrogate mother for these expenses? Especially when these expenses may amount to a great deal more than the intended parent could ever have envisioned, given the high incidence of complications arising in high-risk surrogacy pregnancies that require extensive medical intervention?  

Assuming that these medical interventions cannot be “reasonably anticipated,” it will often be the case that the funds required to be placed in escrow by the intended parents will be insufficient to cover them.  And as a practical matter, a very pregnant surrogate with small children at home who may reside a considerable distance away may not be in a position to get to the NYS Supreme Court to demand reimbursement or to contest any breach of contract in a timely manner—if at all—and thus may face having to pay these expenses herself, or forego critical medical care if she cannot pay. 

Although the Krueger Proposal provides that a surrogacy agreement is required to include information disclosing how the intended parent will cover the medical expenses of a surrogate mother and surrogate children, it doesn’t require that an adequate dollar amount be set aside or put into escrow to cover these expenses, or that reliable mechanics be put in place that guarantee prompt, adequate payment or reimbursement, or even a showing that the intended parents have the financial means to pay for all of the expenses that might arise in addition to the cost of the health insurance policy itself. 

Even with restrictions in place to help reduce the likelihood that a surrogate or egg provider will experience complications that jeopardize their health, the fact remains that complications can and will still arise in surrogacy pregnancies, ovarian stimulation, and egg transfers, which will also result in long-term health risks to the women serving as surrogates and egg providers. But the health insurance coverage required by the Krueger bill is entirely inadequate to cover the medical costs involved in addressing and treating any longer term health issues. 

 

The Krueger Proposal fails to ensure that the lifelong medical needs of surrogate children will be met.

 

Even with restrictions in place to help reduce the likelihood that a surrogate will experience complications that jeopardize the health of resulting children, the fact remains that complications will arise and children will be born with major short-term and long-term health deficits. Although the Krueger bill provides that surrogacy contracts must include information disclosing how the intended parents will cover the medical expenses of any surrogate child, and also makes some provision requiring that money to cover medical expenses be put into an escrow fund, there is no requirement that intended parents demonstrate that they have the wherewithal to cover these potentially enormous lifelong medical expenses.

 

The Krueger Proposal provides “rights” to the surrogate mother that remain illusory and unenforceable in practice.

 

A number of “rights” granted to a would-be surrogate pursuant to the Krueger Proposal remain illusory and unenforceable in practice. For example, the Krueger Proposal provides that a surrogate agreement, to be lawful, must permit a surrogate mother to make all of her own health and welfare decisions during her pregnancy, including a decision to terminate or reduce her pregnancy. In practice, however, pregnancy terminations and reductions can both be difficult and expensive to arrange. The Krueger Proposal is silent as to how these procedures are to be paid for. If their cost is to be borne by the surrogate, they may-- in practice--be unobtainable.

 

The Krueger Proposal also grants to a surrogate mother a window of time after giving birth to a child to affirmatively decline to disclaim or renounce her parenting rights, in which case it is left to the court to determine who shall be a legal parent of the child. The ability of a surrogate mother to enforce this right in court, however, would require the assistance of legal counsel. And yet it is not realistic to assume that the intended parents will be expected to pay for the surrogate mother’s legal counsel in this situation, nor is it realistic to assume that the surrogate mother herself has the financial wherewithal to afford to pay for this legal counsel on her own. Absent the availability of legal counsel, however, the surrogate mother’s right to retain parenting rights is entirely illusory.

Pursuant to the Krueger Proposal, upon the birth of a surrogate child, the surrogate mother and one intended parent are automatically deemed to be "interim parents" of the child, and are to "share decision-making responsibilities" regarding the child.  In practice, however, it is impossible to imagine how parenting can be shared between these two parties if and when their wishes for the child are diametrically opposed. 

 

The truth is, eggs and parenting rights are being sold in these transactions, notwithstanding insistent language to the contrary.

 

The Krueger Proposal permits compensation to be paid to egg providers and surrogate mothers “based on medical risks, physical discomfort, inconvenience, and the responsibilities they are undertaking in connection with their participation in the assisted reproduction,” but insists that “[u]nder no circumstances may compensation be paid to purchase gametes or embryos or for the relinquishment of a parental interest in a child.”

However, as pointed out by David Smolin in his article entitled "The One Hundred Thousand Dollar Baby: The Ideological Roots of a New American Export,” there is in reality no substantive difference between a market in things or persons, on the one hand, and a market in the service of providing things or persons, on the other hand. As an example, he suggests that Honda or Ford could characterize themselves as service providers, as both are certainly in the business of the “provision of cars” to drivers. Nonetheless, however, it cannot be reasonable denied that Honda and Ford are also in the business of selling cars. 

Similarly, the distinction between the business of providing a child or an egg, and the business of selling a child or an egg, is merely semantic, and Smolin argues that to make such a distinction is to engage in self-delusion, in order to avoid admitting what is abhorrent--- that we really have are markets in eggs and children. 

Were an egg provider's compensation strictly based on medical risks, physical discomfort, and the inconveniences and responsibilities she undertakes in providing eggs--rather than the eggs themselves--there would be no justifiable differential in compensation received by an egg provider, on the one hand, who failed to graduate from high school and possesses no particularly desirable or appealing attributes, and an egg provider, on the other hand, who is a summa graduate from Harvard, an Olympic athlete and music prodigy, and is uncommonly beautiful as well. But we all know that the former egg provider--if anyone is willing to engage her services at all, no matter how eager, healthy, and willing she may be--cannot hope to earn the $100,000+ compensation for her "services" that the latter egg provider can command. 

By relying on semantic distinctions in order to justify the buying and selling of parental rights and eggs and the commodification of women and children, the Krueger Proposal must not be condemned.