Updated, Dec. 31, 10:00 a.m. | A New Jersey judge has ruled that a gestational surrogate who gave birth to twin girls is their legal mother, even though she is not genetically related to them.

The Times recently published an article on the ethical and legal issues surrounding the use of surrogates in reproduction, which become even more complicated when the parents are essentially contractors who find egg donors, sperm donors and pregnancy surrogates to carry the baby.

As surrogacy becomes more common, should contracts for babies be subject to the strict vetting applied to adoption? Is there a public interest in regulating the process and deciding who can obtain a baby through surrogacy? Or is this a reproductive right that should be left to the private realm?

A Legal and Ethical Void

Diane B. Kunz is the executive director of the Center for Adoption Policy, a nonprofit group that provides research, analysis, advice and education on domestic and international adoption.

There are many ways to create a family but only one — adoption — is consistently regulated. That should change. Assisted reproductive technology, of which surrogacy represents a small percentage, is replacing adoption as the preferred method of family creation for those who cannot have a baby without assistance. It should be regulated, not to limit technology but to protect all involved, especially the children.

Medical tourism and the globalization of surrogacy make the case for regulation imperative.

Adoption used to be an informal, unregulated practice, determined by kinship ties, word of mouth or chance rather than professional vetting and assessment. It is only in the past century or so that adoption became a matter for regulation.

Governance may well come from the assisted reproductive technology community. And it should because it is in a position to create a code of practice that would be effective and ensure access to the technology regardless of gender, sexual preference or marital status.

Read more… But if self-regulation does not happen, current laws provide a clear precedent for a governmental role. The right to privacy surrounding reproductive rights has long coexisted with legal constraints on certain activities. The tragic cases in Stephanie Saul’s article in The Times demonstrate what happens in a legal and ethical void. Medical tourism and the globalization of surrogacy in particular and assisted reproductive technology in general make the case for regulation imperative. We cannot stop every unethical practice that happens anywhere in the world. But we can do our best to make practices the gold standard. Finally, I would like to see an international convention on assisted reproduction procedures, similar to the Hague Convention on Intercountry Adoption. The Hague treaty provides a framework for a more transparent and accountable adoption world. Surely children created through surrogacy and other technological procedures deserve no less.

Ethics and Fees

Arthur Caplan is a professor of bioethics at the University of Pennsylvania School of Medicine. His most recent book is the “Penn Center Guide to Bioethics.”

Some years ago, young woman in Indiana signed a surrogacy agreement with a man from Pennsylvania. She agreed to be artificially inseminated by him and deliver any baby that resulted for a fee of $30,000. One month after a baby boy was born, the fee paid and the child taken back to Northeast Pennsylvania, the man beat the child to death. He pleaded guilty to third degree murder.

There are more laws in the United States governing the breeding of animals than the use of surrogates to make people.

Today, the fees being charged for surrogate mothers have escalated well past $50,000. As a result, some of the surrogacy trade is being outsourced to poor women in India and China. Indian women agree to carry to term embryos for American parents for fees averaging around $12,000. However, most of the money goes to brokers or agents.

There are more laws in the United States governing the breeding of dogs, cats, fish, exotic animals, and wild game species than exist with respect to the use of surrogates and reproductive technologies to make people.

Read more… There is little guidance on what screening is appropriate for those seeking surrogates or wanting to act as a surrogate. It is not clear what must happen if a baby is born with a problem or a defect or what minimal requirements ought be followed in deciding whether to let a single person or a couple use surrogacy services. And the phenomenon of outsourcing surrogacy to cheaper wombs in distance lands is simply a scandal waiting to happen. There is no doubt that those seeking to have children with whom they can have a genetic connection have benefited from surrogacy. Nor is there any reason to think that the experiences for those who have been paid as surrogate mothers or the families they have helped to create have been so bad that we should ban surrogacy for hire. But the case for more regulation and oversight seems clear, given the need to protect the interests of children when money is the main motive for bearing them as well as the uncertain abilities of women in need of money to listen to information about risks from brokers eager to retain and profit from them. Whether we will ever see such regulation in America is doubtful. Those who use surrogates don’t want it. Those who want to act as surrogates do not either. Brokers and others in the business certainly don’t. And politicians quickly discover that there is no lobby for regulation, particularly when the entire subject is ethically murky. That is too bad. Our children and those who parent them deserve better.

Licenses for Surrogacy Clinics

Charles P. Kindregan Jr. is a professor of family law at Suffolk University in Boston, and is co-author of the American Bar Association book on assisted reproduction.

Incidents involving children born to gestational carriers in recent years have raised the question of whether legal restraints should be imposed on the use of surrogacy. Some countries do impose legal restraints on various forms of assisted reproductive technology.

It is unconscionable that surrogacy is so unregulated that anyone can open and operate a for-profit surrogacy clinic.

But this technology has often succeeded in providing children to loving parents, and while the fewer sad hard cases may suggest the need for legislative intervention, any regulation of surrogacy must be reasonable and carefully defined.

The freedom of parental choice to conceive and raise a child is protected by the Constitution. Of course, the law can impose reasonable restrictions to protect both choice and the welfare of children. Everyone who has studied the issues raised by assisted reproductive technology and specifically by surrogacy recognize that there is a need to ensure the protection of children brought into existence by this technology. I think it is possible to achieve this goal while still allowing the option for gay and lesbian partners, as well as non-partnered and infertile couples to enjoy the rights and obligations of parenthood.

Read more… Legal adoption is the soundest method of creating and protecting legal parenthood, but a person cannot be compelled to adopt and may not even be eligible to do so. However, the use of surrogacy can be provided with greater protections for all involved, including the potential children. It is unconscionable that the practice of surrogacy in the United States is so unregulated that anyone can open and operate a for-profit surrogacy clinic. Such a business should be licensed by each state and should be required to follow guidelines as to screening of gamete donors, makeup of the staff, collection of gametes and embryos, mental health consultation and counseling of all participants (known donors, surrogate carriers and intended parents). State laws should also require some form of pre-birth judicial review to insure that a child born to a surrogate is to be given to the custody of persons who meet minimum standards of fitness for parenthood. In the case of a state that allows enforcement of a surrogacy contract when an intended parent has a genetic connection to a child, the law should contain strict and enforceable standards. If these are not met, the intended parent should not be allowed to have custody unless a judicial ruling determines that custody is in the best interests of the child. Such judicial review should be mandated in all other gestational surrogacy arrangements. Such requirements are justifiable to protect children, and I do not think they would violate any constitutional strictures.

Screen the Parents

Rebecca Dresser is a professor of law and professor of ethics in medicine at Washington University in St. Louis.

Since surrogacy’s inception, legal authorities and scholars have argued over regulation of surrogacy arrangements. For better or worse, most individuals become parents without having to establish their qualifications for child-rearing.

The intended social parents as well as the surrogate should meet standards for parental fitness.

But in adoption, prospective parents must undergo screening to evaluate their parental fitness. Which approach should we take to people seeking parenthood through surrogacy?

Advocates for infertile people favor limited state intervention, arguing that people should be free to make private agreements with others willing to provide them with the biological means to become parents. Courts may have to step in when those agreements fall apart, but any other regulation imposes unfair burdens on those already bearing the burdens of infertility.