Women and Children First?

Pregnant woman

I didn't realize how risky it was to do another surrogacy. Nobody tells you that. They don't give you the details," Kelly Martinez remembers. "So I didn't see these risks. I had just seen the financial part again. I was going to help my family [by making money] one more time."

It's been four years since Martinez, a married mother of three in Custer, S.D., who admittedly lives paycheck to paycheck, nearly died while carrying twins in her third surrogate pregnancy. Her previous pregnancies had all gone smoothly, from a physical standpoint. But this time she developed pre-
eclampsia, which sent her body into "borderline stroke." As her organs started shutting down, Martinez was hospitalized and delivered the twin boys she was carrying 10 weeks early, via C-section.

Though she and the twins all ultimately survived, the experience shook Martinez, her husband Jay and their three children. Troubled by what she perceived to be a lack of honesty and ethics among many fertility specialists, as well as surrogacy agreements that she thought practically enslaved gestational carriers—the legal term for surrogate mothers—like herself, Martinez began advocating for bans on surrogacy.

"When you do a surrogacy contract," she recalls, "they can tell you what you're going to do [for] the next however many weeks they're renting your body."

But in this case there was an added complication: Unlike her two previous surrogacies, this time around, Martinez bonded with the twins she was carrying. The intended parents who hired her to deliver their babies seemed detached from the newborns, Martinez thought, as the boys battled for their lives in the hospital's neonatal intensive care unit.

The intended parents had paid to have specialists conduct pre-implantation genetic testing on the embryos they created. In the hopes of having a boy and a girl, they decided to transfer one male embryo and one female embryo into Martinez's body. The female embryo, through no fault of Martinez, simply failed to implant. The male embryo, however, not only survived the delicate step of implantation, but split in the process, becoming twins.

From the moment they learned the outcome would not turn out exactly as they had hoped, Jay recalls, the intended parents' demeanor shifted from friendly to angry and aloof.

"They were very hung up on the fact that they did not get what they paid for. They didn't care that they were having two beautiful boys," he tells Citizen. "All they knew was they weren't getting the girl they wanted."

Her maternal instincts kicking in, Martinez became deeply worried about the home these children—boys who, to a large extent, felt like they were hers—were going to. After leaving the hospital with their sons, the intended parents disappeared, never to be heard from again. Martinez was left with a deep sense of emptiness, anxiety and regret.

What Does The Law Say?

It's not entirely surprising that such issues would crop up, given the deeply spiritual and personal nature of procreation and God's design for the family unit. While the Bible is silent on this issue per se, Focus on the Family would lean toward discouraging it. The grave concerns the ministry has regarding the practice were borne out in the Martinez family's experiences—and many other families' as well.

What if Kelly Martinez had fought to keep the children to whom she had given birth? Could she have taken her case to the courts?

"Well, she can. But she overwhelmingly loses in a court of law," says Jennifer Lahl, president of The Center for Bioethics and Clture. "There are contested cases, but they don't get the time of day in the courts."

When it comes to surrogacy, the United States has a patchwork of laws that vary widely from state to state. The federal government so far has avoided getting involved. Lahl, who opposes surrogacy in all forms, says this legal mish-mash leaves surrogate mothers and the children they bear vulnerable to exploitation.

"[Surrogacy advocates'] goal is to make states so friendly to the technology that the buyers benefit," she says. "That way they don't have to worry about a mother changing her mind, saying 'I can't surrender the child' because she bonded. They don't want to have to worry about that kind of stuff."

With surrogacy unregulated by the federal government, state courts are where legal disputes are decided. In states where surrogacy agreements are considered legal and binding, Lahl says the justice system tilts heavily in favor of the intended parents, often disregarding whether surrogate mothers were adequately informed in advance of the health risks and emotional turmoil they could face. Recent developments make it clear that, at least in the near future, states will likely continue to be the arbiters of such matters.

"We had two cases that were just before the Supreme Court this fall, and the Supreme Court ruled they won't hear these cases," Lahl says. "These were two surrogates, and they both contested, wanting to keep the children for the best interests of the children."

In those cases, the surrogate mothers—one from California and one from Iowa—became distraught over the futures of the children they were carrying as they got to know the intended parents better. One surrogate accused the couple she was working with of regularly using racial slurs, while the other was carrying triplets for a single man she claimed had asked her to abort at least one of them over financial concerns. Yet the state courts ruled that the surrogacy agreements signed before any of those concerns came to light were binding. Since the U.S. Supreme Court declined to step in, the decisions to place the children with the intended parents stood.

It's a situation so concerning to Lahl and her team that they released a documentary on this topic last fall titled #BigFertility: It's All About the Money. The film largely consists of Kelly and Jay Martinez sharing their story of surrogacy gone wrong. Though #BigFertility focuses mainly on what Lahl sees as ethical lapses fueled by greed in the fertility industry, she says the Wild West nature of the country's surrogacy laws is undeniably part of the problematic equation—often leaving anxious surrogate mothers cloudy about which rules and rights apply to them and the children they carry.

For instance, Martinez's heart- wrenching final surrogacy took place in South Dakota, which is generally seen as being in the middle of the surrogacy spectrum. It has no laws prohibiting surrogacy contracts, and its courts grant third trimester pre-birth orders, which declare that hospitals must put the names of the intended parents—not the surrogate mother—on birth certificates.

That would seem to give a concerned surrogate like Martinez little recourse to assert her parental rights. Then again, with no state laws officially declaring surrogacy contracts legally enforceable, who's to say for sure?

Unhelpful Hodgepodge

America's state-by-state, take-your-own-approach reality has created a lack of legal consistency as complicated as surrogacy itself.

"Currently New York does not allow any surrogacy. If you enter into a contract, it's not recognized as a legal, binding contract," Lahl says. "Then there are states like Texas, which is very surrogacy-friendly, but only if you're married and you're a heterosexual couple. Well, of course that creates a problem because, given our current context, that's seen as a discriminatory law."

Will Texas, then, have to change its laws to accommodate same-sex couples? What will come of talk that New York could soon legalize surrogacy?

Similar swirls of uncertainty, to some degree, apply to most states. Surrogacy advocates say only a handful— California, Delaware, Maine and Nevada—have ironclad laws allowing surrogacy under virtually any circumstances, complete with enforceable pre-birth orders. Then there are a precious few—Louisiana, Michigan and New York—that either outlaw surrogacy entirely or restrict it to married heterosexual couples using their own eggs and sperm.

Most states, however, fall between those two extremes. The general trend of most has been to move toward a more supportive posture. Many let surrogacy take place, but have no formal statewide laws. Others have created legislation allowing the practice, but only if the intended parents are married (and in some cases, like Texas, heterosexual). Some legally recognize pre-birth orders, but with various conditions attached. Still others prefer post-birth orders, which establish parentage of the baby based on a given surrogacy agreement, yet are not issued until after the birth (theoretically giving the surrogate a chance to make a claim for her own parenting rights).

Lahl says the friendlier states become to surrogacy, the fewer protections they offer to surrogate mothers and babies—not only emotionally but physically.

"Surrogate mothers have above and beyond the natural risks of pregnancy," explains Lahl, a registered nurse by training. "You'll see high risks of pre-eclampsia, hypertension, maternal gestational diabetes. Of course those are risks to the children as well, because once the mother's at risk, the babies are also at risk."

Yet surrogates—virtually all of whom, Lahl says, are financially challenged to some degree—are lured with the promises of earning good money for their families while doing something noble for someone else; the pay can generally range from $30,000 to $75,000. Most state governments do nothing to pump the brakes on that mindset.

"They're telling these women they're doing something amazingly wonderful," Lahl says. " 'Give the gift of life,' all that kind of flowery language, and 'Oh, by the way, you'll help your family, too.' "

A Bleak Outlook

The Center for Bioethics and Culture isn't alone in its concern about the potentially predatory aspects of surrogacy. The Christian Medical and Dental Associations (CMDA) cautions against surrogacy except in rare cases aimed specifically at saving the lives of embryos previously created.

"Surrogacy poses moral and practical dilemmas," says CMDA Senior Vice President Gene Rudd, including "the risks of exploitation of women, commodification of embryos and even gestation itself, emotional and mental health issues arising when the surrogate has to relinquish the mothering relationship, for less than noble reasons, and not of medical necessity." In other words, "The rich could purchase gestation services from the poor."

His concerns echo those of Lahl and the Martinez family almost exactly. As disappointing as she finds the U.S. Supreme Court's failure to address surrogacy, Lahl is just as frustrated there's no appetite in Congress for legislation protecting women and children from its painful, often-hidden realities.

"Europe is having huge, major battles on [surrogacy] laws," Lahl says. "And I'm sitting here in America where life is going on and people are buying and selling children or buying and selling eggs and renting wombs."

While the possibility of any change looks bleak for the moment, Lahl exhorts Christians to pray. As for Martinez, she'll continue sharing her story of regret in the hopes it will somehow make a difference.

"I did surrogacy for the money, the financial gain," she says. "But I still struggle financially, paycheck to paycheck, so it didn't fix everything. It didn't solve anything."

For More Information:

To learn more about the approach Focus on the Family takes to surrogacy, visit https://bit.ly/2OG2MrC.

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