Why Are Some Abortion Opponents Looking To Ban Surrogacy?

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0:31This is 1A. I'm Jen White. It's been four years since the fall of Roe v. Wade upended federal protection for abortion access nationwide. Since then, abortion opponents have set their sights on a new target, surrogacy. A gestational surrogate carries an embryo that was formed using the egg of another woman, usually via in vitro fertilization. Before the pregnancy, the surrogate agrees to return the baby to its intended parents once born. At its core, surrogacy is a contractual agreement. But because there's no federal law regulating surrogacy agreements, it's left up to the states to decide how they can be enforced, including when it comes to terminating a pregnancy.

1:12That's the issue at the heart of a high-profile legal dispute between an Alaska surrogate and a California couple. I'm Jen White. You're listening to the 1A Podcast. Today on 1A, why are some abortion opponents looking to ban surrogacy, and could they succeed? We dive in after this.

1:32Support for NPR and the following message come from 10 Speed Press, publisher of Ordinary People, Extraordinary Times by Sky Perryman. Ordinary People, Extraordinary Times is a guide for how everyday citizens can fight for freedom. President and CEO of Democracy Forward, Sky Perryman, shows that the path forward begins not in the halls of power, but at kitchen tables, in neighborhoods, and through the everyday choices people make. Ordinary People, Extraordinary Times is available wherever books are sold. Fall is right around the corner. That means the midterms. Hey, it's Miles Parks from the NPR Politics Podcast.

2:11Now is the perfect time to calibrate your news diet for the fall. Follow our show for short daily episodes that will help you stay ahead of the most important midterm storylines that you need to follow. Find the NPR Politics Podcast on the NPR app or wherever you get your podcasts. Let's meet our guests. Joining us now is Shefali Luthra. She's the reproductive health reporter at The 19th News. She's also the author of Undue Burden, Life and Death Decisions in Post-Roe America. Shefali, it's always great to have you. Thank you so much for having me. Joining us from California is Mary Ziegler. She's a law professor at the University of California, Davis, and an expert on the law, history, and politics of reproduction, health care, and conservatism in the United States.

2:56She's also the author of Roe, a History of a National Obsession. Mary, welcome back. Thanks for having me. So surrogacy is still a rare method for building a family, but over the past few decades, it's gained popularity. According to the American Society for Reproductive Medicine, fertility clinics in the U.S. reported more than 11 ,000 surrogacy cycles in 2023, and that's nearly seven times as many as 2004 when the organization began tracking data. But Shefali, as of 2020, surrogate births accounted for about 14 out of every 100 ,000 births in the U.S. and less than 2 % of all fertility treatments.

3:33So why now has this relatively rare fertility process become the focus for abortion opponents? I think part of it has to do, frankly, with this case that has been playing out under the national spotlight over the past couple of weeks involving a dispute between a surrogate and biological parents of a child who had a fetal anomaly and there was disagreement over whether to proceed with an abortion. The child has now been born, and there are disagreements about who should have custody over the child. And this has really put a lot of attention on this particular issue and really given new life to the interests in regulating or even restricting surrogacy.

4:17simultaneously in this post-Dobbs landscape, there is a lot more conversation around access to different kinds of fertility treatments, such as IVF, which as you mentioned, is an important part of the surrogacy model, pattern, et cetera. And so this sort of feels like a natural outgrowth of that conversation. If you are seeing lawmakers and activists looking at IVF, they are also ultimately looking at surrogacy. And we can talk a bit about the ideological overlap in terms of those restrictions and how opposition to surrogacy often feeds as well into the same reasons why people might want to restrict IVF, which is much more commonly used.

4:58We'll talk about that in a moment. But Mary, I want to first understand if the surrogate in the case Shefali mentioned lives in Alaska and the parents, the intended parents live in California, how did the case end up in Texas. So this is an interesting, this case is unusual in the sense that a lot of surrogacy contracts have confidentiality provisions. So this is sort of offering a window into how surrogacy can sometimes work that I think has really captured national attention. The surrogate in this case, McKenna West, after reaching this disagreement about what to do about the pregnancy, reached out to a pro-life or anti-abortion group called Live Action.

5:39And Live Action then helped her travel to Texas, which both, of course, bans abortion and has surrogacy laws that West and her supporters believed would make it easier for her potentially to pursue parental rights down the line. And all of this, of course, made the case even messier because there are now potentially three states with a stake in the legal outcome here, in addition to three people claiming a stake in parental rights with respect to this child. We got this from Melody in Michigan who emails, I have an intersex variation and required a gestational carrier for my now 10-year-old kid.

6:19It was illegal in Michigan at the time, so we worked with an agency in Illinois under their excellent state law. The Michigan law has since changed. We're still close with the family who carried my daughter. Shefali, what types of people typically become parents through surrogacy? There's really two groups in which surrogacy is most commonly relevant. One is people who are largely cisgender man, cisgender woman, have been trying and cannot safely, medically for whatever reason, carry a pregnancy themselves. And so in that case, they might turn to surrogacy. It's worth noting, surrogacy is typically not covered by insurance.

6:55Some employers have surrogacy benefits, but this is a very expensive process and it's something people do because, frankly, they really, really want a child and infertility can be really devastating. The other group that we often see is queer couples. For instance, the listener who wrote in, often gay men, for instance, because there isn't anyone between the two of them who can become pregnant. And so these are really the groups who would be most affected, and frankly, in the conversations that I have been following with people who oppose surrogacy. Some of the reason for that animosity is because of its role in queer family building.

7:33Well, let's hear from McKenna West, the Alaska surrogate, in the case we've been discussing. This is how she described her conversations with the California couple before the pregnancy began. Um, yeah, going into this, we had talked about it when we first met, um, and I asked them kind of their views on termination and it was a reassuring conversation that really they wanted a baby. They weren't exactly sure what decision they would make if something came up, but they ultimately just wanted to be parents. And so I felt confident moving forward with them that termination would not be their first choice.

8:14Mary, the surrogate, McKenna West, had signed a contract that outlined what would happen if the intended parents wished to terminate the pregnancy. Are those terms legally enforceable? So this is actually complicated, right? So there are two kinds of provisions you'll typically see in surrogacy contracts. They can go this way, as in the McKenna-West case, where the term seems to obligate someone to terminate a pregnancy. There are also provisions in surrogacy contracts forbidding someone from terminating a pregnancy, absent certain circumstances. And most legal experts, and I would agree, that a judge would never actually force someone to have an abortion or not to have an abortion.

8:51There are all kinds of legal problems with that. That doesn't mean that these terms can't be coercive, however, potentially, because it's less settled whether someone can be sued for money for not performing that part of the contract, or maybe the intended parents can pursue repayment for money that's already been paid under the contract. So they're not directly enforceable in the sense that no judge is going to order someone to go have an abortion or order an abortion to be stopped. But there are scenarios, or at least the possibility, that there can be money owed by the surrogate. And some have raised questions that that could create pressure that we wouldn't want that would compromise somebody's autonomy.

9:37Javali, where does this case stand right now? There was a hearing earlier this week. The judge did not yet rule, extended the status quo in which McKenna West does not have custody of the child. We are still waiting for a ruling to see what happens, who will ultimately have custody of this baby. he had open heart surgery. He is in critical condition is what his caretakers have said. It is not clear what will happen next for him in terms of his health. One thing we should mention is that the diagnosis that he had is a very complicated one. It's one where you can live. You require three surgeries and lifelong care, sometimes a heart transplant, but the prognosis is still pretty difficult.

10:25It can be a very tough, medically complex life. But also, there's no guarantee these surgeries will work. And frankly, we don't know what's going to happen with this family. Because there's no federal law regulating surrogacy in the U.S., states set their own rules, as we said. Today, 31 states allow some form of legal surrogacy agreement. So many have limitations on the practice. 17 states have no regulations on surrogacy. Four states, Nebraska, Indiana, Arizona, and Louisiana have banned paid surrogacy agreements. So, Mary, like in the legal case we're discussing, surrogates can often match with intended parents across state or even international lines.

11:06How does that complicate the process? It can complicate the process legally in cases like this one, because one of the things we're already seeing in this case is that there have already been court orders from judges in California. And one of the things the Texas courts are figuring out is, well, what are they supposed to do with those orders? Do they have to obey those orders because of the full faith and credit clause of the Constitution? When do they not? So these questions are incredibly legally complex to begin with, because there is no federal standard. And because really, frankly, state law doesn't answer a lot of these questions.

11:41A lot of issues related to surrogacy are settled privately, which means we don't have a lot of precedent or even a lot of data about what's going on most of the time. And on top of that, you then have a lot of cooks in the kitchen, right? You have a lot of potential state authorities thinking they have a stake in what goes on. And that raises complicated questions about which state gets to decide what and which law actually applies. Oh, we have to take a quick break. But coming up, how and why one organization in Texas is leading the charge to ban surrogacy in that state?

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13:32We've dropped the Dolly Fresh Air interview on the NPR app and wherever you listen to podcasts. Let's get back into the conversation and add a new voice. Joining us now from Houston, Texas is John Sego. He's a bioethicist and the president of Texas Right to Life. That's a Christian organization advocating to end abortion and surrogacy in all forms in Texas. John, thanks for joining us. Yeah, thank you for having me. So what is the case your organization is making against surrogacy? Yeah, this is kind of a new debate publicly and in our political sphere, but it's not new to the pro-life movement.

14:12It's not new to the Christians that are kind of behind the movement that we're a part of and have the pleasure of leading. And the really concern is that surrogacy in any form has two problems, that it objectifies women. It treats them as reproductive contractors, that their value lies in their ability to produce a child, to hand over a child. And then, so it objectifies women, but it also commodifies children, treating them as products for sale, made to order products for sale, unfortunately. And that's inconsistent with the pro-life vision, a bigger and better vision for what we want Texas to look like, what we want the country to look like, that really values the human person more than that.

15:00So you say it objectifies women, it commodifies children. There are cases where for instance, two sisters make an agreement for one sister to carry the child of a sister who can't for whatever reason. There is no money exchanged. There's no contract. It's just a loved one doing something for another loved one. Is your organization against surrogacy in cases like that as well? Yeah. So these cases of altruism, these are definitely different cases, The kind of contracts and exchange of money complicates things and highlights the ethical problems. We're still concerned about this practice, just like we do regulate the giving of organs.

15:44We do regulate certain activities that we don't allow private citizens to make these agreements, to make these kind of decisions because it is against the state interest to protect people from these types of abuses and coercion. And you can imagine how that could be a coercive situation as well. And so we're really, really kind of concerned about these two. And our goal in the conversation is to bring up the ethics. It could get kind of sidetracked into a discussion about birthright citizenship, a discussion about just contracts and who enforces them. We really want to focus on this is not consistent with the high vision of the human person that we want to lead to flourishing in our society.

16:33You've been having conversations with state lawmakers in Texas ahead of the upcoming legislative session about banning surrogacy in all its forms. How are lawmakers responding? Yeah, this is, like I said, this is a new political debate. You know, there were some headlines about, you know, foreign nationals entering into contracts with multiple women to have children that would be American citizens. And that really caught the attention of our lieutenant governor. He's kind of tied this issue to birthright citizenship. This got the attention of Chairwoman Lois Kolkhorst, who heads up our Health and Human Service Committee in the Senate.

17:15And so there has been a debate here. you know the focus has been on definitely national you know kind of foreign interests but then they have brought up this idea of contracts and so the easy kind of focus is what do we do with commercial contracts what do we do with the exchange of money our organization is trying to highlight that they can the ethical concerns are consistent i can't really tell you how things are going to go we've had an interim hearing in the senate and there's a lot of interest to do something about surrogacy, the details were still working out with leaders. Shefali, in your reporting, what are you hearing about support among Texas GOP lawmakers for banning surrogacy?

17:58Where does it fall on their list of priorities? I think there's something really important that John highlighted, right, which is that there are a lot of different moving parts, a lot of things a legislature has to get done in any given session. And this is just one of them. And so I think we really see what things look like next year. There are still questions to discuss around abortion. That's something that John and I have talked about as well and what abortion laws in Texas look like. And so I think we really have to wait and see, does this continue to sustain attention and interest enough to elevate it to the level of priority it might need for something sweeping, or does it ultimately end up being less salient?

18:44And then do you get something narrower, perhaps more akin to the restrictions we've seen in states like Florida, which has in fact enacted one of these bans on foreign nationals using American surrogates? Well, the terms of a surrogacy from compensation to termination to parental rights, they hinge on a contract. It's known as a surrogacy agreement. And John, John, if both parties agree to the terms of that contract with legal representation, they've read the contract, they agree to sign it, how can it be exploitative? Yeah, absolutely. So there are two problems with this, that we don't allow contracts to violate certain state interests.

19:27Just because there is a contract or an agreement, a private agreement, that doesn't allow for the violation of laws that are built on state interest to be ignored. And so we do this all the time. I think a good example in this, another bioethics example, is trafficking of organs, the donation of organs. They're still extremely regulated because there is a state interest in protecting the right to life of its citizens, but also the well-being of its citizens. But you're not seeking to regulate surrogacy. You're pushing to eliminate it altogether. So, yes, but we're not guaranteed that's what the state of Texas is going to do.

20:08That's the ongoing debate. I want to be clear that ethically, the consistent position is to oppose all of it because there is a level of objectification, even if it's amongst friends, even if it's amongst family members, that you're saying the value of this individual that I'm working with, The value of them is their reproductive ability, whereas the human, the kind of pro-life vision is that, no, that actually human person has immense value and immeasurable worth beyond any of their abilities, whether it's reproductive, whether it's their ability to walk, their cognitive abilities. So the pro-life vision is more rich and broad than allowing this kind of agreement that it would just be like me trying to talk my friend into donating a kidney to me.

20:51There is a coercive element, and we recognize that. in the exchange of organs, we recognize there is a coercive danger there. And so we have all kinds of protections. And then some things are just flatly illegal. We got this from Evan in South Dakota, who emails, my wife and I decided to sign up to do surrogacy through an agency last year. We have not felt objectified and have in fact felt very empowered by that decision. The agency has made all legal aspects very clear, which has led to a true friendship with the prospective parents. We live in a red state and wanting to help an LGBT couple was very much part of our decision to do it.

21:27They've been nothing but wonderful and the experience has made us all more whole. So we hear from someone there who's had a surrogacy experience, John, and says, we didn't at all feel objectified. We didn't feel exploited at all. We made a conscious decision to actually volunteer for this role. And to someone like that, how would you answer them? Because I could see someone like Evan saying, actually, you are taking our agency from us in making this decision for ourselves. Yeah. So for the individual themselves that's entering into the contract, we say that maybe there are good examples that we could cite.

22:08Whenever we're doing public policy, though, we know that this applies and we have to be, you know, concerned about how this would apply to multiple situations that we are now legalizing, that we're now endorsing and promoting. And so one or two good examples, the multiple examples you're gonna bring in, that's fine. However, in other situations, when we deal with public health policy, we say that there may be good ways that this could go. However, this does open up the door for exploitation and objectification. The problem, and that's kind of the debate that we're having, and none of this is done, right?

22:42We're gonna have multiple months of the debate in the Texas legislature. The other part, though, that I want to bring up is that the contract is placing itself above the right to life of the child. And we've talked – you all just talked about it earlier – is these kind of clauses of abortion. And that was kind of at the West case, right, that was central there, is that there was in the contract that there is a circumstance where abortion could be insisted upon. And that is saying that an individual's right to life is kind of below and subject to a contract. And as a pro-life organization, we can never agree with that.

23:23Everyone deserves a right to life. Shefali, I know we have to let you go, but before you do, I'm curious to hear how opinions around surrogacy and IVF, which is related, differ within the anti-abortion community. I think we should actually take a look more broadly in terms of how opinions around surrogacy and IVF differ because there's some overlap intellectually, ideologically, amongst abortion opponents, right, around restricting IVF and restricting surrogacy. But I think the politics of restrictions, at least on its face, are quite different because surrogacy, as you mentioned, is much less common than IVF.

24:03So a lot of Americans feel this deeply vested interest in protecting IVF. They may not feel the same way about surrogacy, which is why the politics and the coalitions that you see forming around this could look very different. And that's something we should definitely be keeping an eye on moving forward. Well, that's Shefali Luthra. She's a reproductive health reporter at The 19th News. She's also the author of Undue Burden, Life and Death Decisions in Post-Roe America. Shefali, thank you. Thank you so much. Mary, when we talk about this question of objectification or commodification of children, how does the law view those questions?

24:40Yeah, it's really complicated and interesting, right? One of the strange features of this debate that John, I think, called attention to earlier is that this really hasn't been as publicly debated or connected to abortion until recently. There have been real concerns, I think, across the ideological spectrum about commodification when it comes to the type of surrogacy where the surrogate is also a genetic parent. And a lot of states, in fact, prohibit this. For whatever reason, those concerns were not articulated as forcefully when you had surrogacy combined with IVF. So there hasn't been, I think, kind of a real debate about when commodification arises.

25:24And the debate we've seen in court decisions is really complicated and messy. So you'll see judges kind of say on the one hand that there are concerns potentially about the exploitation of surrogates. At the same time, you'll see judges say that surrogates may themselves be kind of vindicating their own autonomy when choosing to be surrogates. So the picture, again, is kind of that the law is all over the place on this and that there hasn't been, I think, a kind of national reckoning until now in the same way there has been with abortion. And that, I would say, kind of compounds the messiness.

26:03We got this email from Chris who says, I appreciate the thoughtful and civil discussion. Why should the pro-life vision dictate policy for all citizens, regardless of belief? John? Yeah, I think that's part of us being in this legislative process is we're bringing all different views to the table. And even in Texas, we have individuals that have different worldviews. They have a different frame of ethics that they're bringing to the table, and that's how our process works. And so we're definitely going to advocate. We think that this produces the most amount of flourishing. It gives people the most amount of opportunities.