Kidman and Urban: Another Celebrity Couple Uses a Surrogate Mother to Build Their Family

Karen Smith Rotabi

While the celebrity couple is to be congratulated on this obviously joyous occasion, it leaves one to wonder when surrogacy will be truly regulated in the USA and abroad.

It has been announced that Nicole Kidman and Keith Urban used a gestational surrogate for the recent birth of their second child. Apparently, they are the biological parents of the child and the surrogate mother carried the child to term. The couple issued the following statement: “Our family is truly blessed, and just so thankful, to have been given the gift of baby Faith Margaret. No words can adequately convey the incredible gratitude that we feel for everyone who was so supportive throughout this process, in particular our gestational carrier.” Note the term “carrier” and we should all recognize that this word usage is indicative of what is to come—an acknowledgement of the woman who “carried” the child while clarifying a clear boundary from the family unit which has been built of such an arrangement.

While the celebrity couple is to be congratulated on this obviously joyous occasion, it leaves one to wonder when surrogacy will be truly regulated in the USA and abroad. While wealthy individuals and families can afford the very expensive arrangement of surrogacy on US soil, middle class families are turning to overseas surrogates in the global environment. The less expensive practice of global surrogacy costing a fraction of US-based surrogate services, using the wombs of poor women overseas, does not come without a different sort of cost for the surrogates themselves. In India, surrogates are stigmatized and women live away from their communities during pregnancy. In traditional societies where purity is honored and even required, this is not an uncomplicated experience and surrogates face many hardships—not just the emotional complications of parent-child attachment, but also social consequences of shame and stigma.

As more and more celebrity couples like Kidman and Urban as well as Elton John  are honest about their use of surrogate mothers, it is predictable that the idea of surrogacy will begin to take hold amongst the masses. However, each US state regulates the process differently and then in global surrogacy arrangements, each nation varies. In some countries, like Guatemala where surrogacy is just beginning to take hold, there are no regulations or oversight and this is a recipe for disaster. The system is more developed in India, but ultimately the protections for the surrogate mothers are lacking.

Ultimately, in this neolibrel economic environment of globalization, just about anything and everything is for sale. However, let there be no doubt that sales of surrogacy services are anything but uncomplicated. It is time for the USA to begin to regulate surrogacy consistently across all 50-states both inside and outside our borders. On the latter, the only fast answer is immigration policy related to children born overseas with surrogate services. Changing the definitions of children born of US citizens (genetic offspring) will inevitably be a hot issue if it should be included into the immigration debates.  Ultimately, this is not an ideal approach, but it should be considered as one potential solution.

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If there is not regulation, you can count on one thing, surrogacy services en masse from developing nations will become highly organized human sales networks with incredible dividends. The human slavery that will emerge will not be science fiction fantasy, but rather a grotesque manifestation of the intersection of fertility technology and the demand for babies at any cost.

Commentary Law and Policy

Choice, Surrogacy, and a Troubling Response to My Previous Commentary on Criminalization

Erin Matson

Last week, Rewire published a piece in response to an earlier commentary I wrote about what was being billed as a feminist effort to criminalize surrogacy in Kansas. Much as I respect them, it appears the co-authors of that article responded to a straw man.

Last week, Rewire published a response to an earlier commentary I wrote about what was being billed as a feminist effort to criminalize surrogacy in Kansas. If enacted, SB 302 would make surrogate parents, gestational carriers, and anyone who “is involved in, or induces, arranges or otherwise assists in the formation of a surrogate parenting contract” liable to up to a $10,000 fine or imprisonment of up to one year.

My commentary specifically critiqued what were presented as feminist arguments in favor of throwing people in jail on the basis of carrying a surrogate pregnancy to term. The rebuttal took no position on this matter while at the same time claiming my argument and concerns were “simplistic.” The authors disagreed loudly with me on a “litmus test for feminists” that I never proposed without ever taking a position on the central concern in my article: laws promoting jail time for surrogate families. As my colleague Emily Crockett noted independently on Twitter, I “was not arguing against ‘responsible policies and oversight’ re: surrogacy, rather CRIMINALIZATION.” Much as I respect them, it appears the co-authors of “Invoking ‘Choice’ When Discussing Surrogacy as a Feminist Concern is a Mistake,” responded to a straw man.

That said, in the interest of moving the discussion forward, I would like to engage with some of the points raised by the authors in their response, and raise some additional points for consideration. After all, I agree that, yes, surrogacy is a complex issue, and further, I believe readers are up to the task of considering the issues and making up their own minds.

The authors raise a number of legitimate issues, including the fact that surrogacy can take place in a market context, and that means “we should look closely at workers’ safety and rights.” Further, they address the fact that surrogates may have fewer economic resources than those families for whom they have chosen to bear children. These issues are important. Many of those who wish to outlaw surrogacy or place strict regulations on it have a strong, visceral reaction to the fact that money may change hands or contracts may be drawn up in the creation of family.

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However, we may wish to consider three things: One, the inference of exploitation does not account for women who say they enjoy carrying pregnancies to term for other families. Two, pregnancy and especially childbirth are all-encompassing deals; taking those burdens on for another may well be worthy of compensation beyond a so-called labor of love. Three, fair contracts offer the possibility of protections, including clauses that could enshrine a core tenet of reproductive rights: that a pregnant woman direct the course of her own health care and outcomes—including but not limited to retaining the power to pursue abortion in consultation with her medical team, and retaining the power to decline a c-section.

There are a number of points the authors raise about the operation of surrogacy in an international context, and in this area it’s prudent to exercise caution in drawing broad parallels when crafting domestic policy here in the United States. The issue of black markets abroad is sobering, but wouldn’t it be the case that enacting strict regulations in the states could encourage rather than discourage the emergence of bad actors? After all, as many families facing infertility can attest, the drive to have children often doesn’t go away when the means to do so seem to disappear. To consider another case of homegrown solutions crafted to address international issues, we have seen how the situation of son preference in other countries has been repeatedly invoked in the introduction of racist, sexist abortion bans in the United States that do not address the issue of son preference in other countries but rather promote racial profiling and make abortion less accessible for women of color here at home.

It is also important to use caution when drawing broad conclusions about banning surrogacy based on the situation of women in other countries. For example, France is listed in the piece as one country that has banned surrogacy but is “more ‘feminist’ and protect[s] abortion rights far more strongly than the United States.” Some would argue that France has a more macho culture than the United States—during the height of the coverage of sexual assault charges against Dominique Strauss-Kahn, French feminist groups rose up decrying not just the alleged crimes but also the “inequalities and machismo of French society.” Further, France may offer reimbursements for abortion procedures, but abortion is only legal up to 12 weeks of pregnancy. Is that “protect[ing] abortion rights far more strongly than the United States”? That’s very debatable and also ignores a broader context about the access and availability of health care more generally. In any case, conflating the institution of surrogacy bans with the greater realization of feminism and abortion rights is neither germane nor descriptive of a cause-and-effect relationship; even if it were, it’s very debatable if more rights in one area justifies circumscribing a separate set of rights in another. Firmly, I argue not.

There are a number of additional points that I would like to introduce that merit careful consideration, especially when we consider what was framed as feminist arguments for the legislation I originally referenced, SB 302 in Kansas.

While my original piece focused on the testimony provided by two women in favor of SB 302, one additional person testified in favor of the bill. Mike Schuttoffel serves as executive director of the Kansas Catholic Conference and said in his testimony that surrogacy “violates the sacred bond of mother and child,” offering adoption as an alternative solution. This is important to discuss.

Some families headed by heterosexual couples thoughtfully choose surrogacy after facing problems with fertility. Surrogacy may play a special role in the formation of same-sex families, especially households headed exclusively by men. Is adoption a better answer? Perhaps for some families, but arguing that adoption is the sole correct answer for LGBT families or families dealing with infertility rings about as helpful as arguing that adoption is the perfect answer to eliminating the need for abortion. In modern times as in others, the experience of family varies dramatically from person to person, and prescribing what is best for families facing infertility doesn’t solve problems. (Janna Zinzi has a thoughtful piece on infertility, shame, and how Melissa Harris-Perry is sparking a national conversation about fertility and family through open discussion of how she welcomed a daughter through surrogacy here.)

Going back to a policy perspective, the Kansas bill can be seen as yet another part of a national effort to make pregnant women criminals. In Tennessee, for example, SB 1391 criminalizes drug use during pregnancy and offers an instructive lens for examining the Kansas situation. That’s because while women-focused proponents of the surrogacy criminalization bill argue that women in poverty need to be protected from economic pressures to bear children for another family, the reality is that the bill criminalizes everyone and facially neutral criminal laws are not applied proportionally on the basis of race and class. (My colleague Imani Gandy has an excellent commentary on how Tennessee’s pregnancy criminalization law will hit Black women the hardest, however race-neutral the bill appears to be, here.)

Regarding tactics and alliances, let’s also think carefully about whether and when it’s a good idea to partner with members of the “pro-life” advocacy community in regulating reproduction and surrogacy. The response article to my original piece appears to stand in solidarity with the arguments I deconstructed that Jennifer Lahl and Kathleen Sloan presented at the hearing in favor of SB 302. Perhaps this is no mistake—it could be that the co-authors agree with the presentation of that testimony in favor of criminalizing surrogacy, or it could be something else. We don’t know. What we do know is that Judy Norsigian, who co-authored the piece has, like Sloan, worked with Jennifer Lahl to promote Lahl’s anti-surrogacy film, Eggsploitation. This is important because this film was used as a prop in the campaign to criminalize surrogacy in Kansas; indeed, Lahl and Sloan headlined a screening of the film in Topeka the same day they testified for SB 302.

My point is not to single people out but to point out these relationships and interconnections. While I never argued for a “litmus test for feminists” and am not doing so now, it is fair to on a broader level question if these partnerships are a good idea. Informal or formal partnerships with anti-choicers might make sense in family policy areas where we should be able to find common ground (establishing fairness for pregnant workers, the right to nurse in public, and guaranteed paid family leave, to name a few), but do they make sense in the realm of reproductive health and medicine? Even if areas of agreement were to arise, the anti-choice movement’s disdain for fact-based arguments as well as its failure to address violence within its ranks creates serious reason for pause.

I urge the authors of the response piece as well as our readers to engage vigorously with the substance of my original piece and with these issues. Is a $10,000 fine and 365 days in jail an appropriate way to deal with concerns about surrogacy? Are criminalization, outright bans, and stringent regulations created with the intention of making new surrogate parenting arrangements difficult to outright impossible “thoughtful” approaches to these concerns? Is it ever OK to throw some women in jail for the sake of an invoked greater good? Under which circumstances is it acceptable to create new restrictions on reproductive rights?

Commentary Maternity and Birthing

Invoking ‘Choice’ When Discussing Surrogacy as a Feminist Concern Is a Mistake

Susan Berke Fogel, Francine Coeytaux & Marcy Darnovsky

A recent Rewire piece treated the vexing question of commercial surrogacy as a litmus test for feminists. For us at Pro-Choice Alliance for Responsible Research, we believe that contract pregnancy can’t be understood in such a simplistic framework.

Editor’s note: A previous version of this commentary incorrectly stated that a number of countries, including Australia, “protect abortion rights far more strongly than the United States.” In fact, laws relating to abortion vary between each state in Australia, and the procedure remains illegal in many Australian jurisdictions. We regret the error.

It is troubling to see the vexing question of commercial surrogacy treated as a litmus test for feminists at Rewire. While some lifelong supporters of women’s rights may see nothing problematic about contract pregnancy, others argue that it should be prohibited, and still others believe it should be allowed but carefully regulated. Contract pregnancy can’t be understood in a simplistic pro-choice versus anti-choice framework, or as only a matter of self-determination. Thirty years after “Baby M” and more than a decade after the emergence of a cross-border surrogacy industry, some of us are still unsure where we come down on commercial surrogacy. But it seems indisputable that the issue of contract pregnancy deserves careful thought.

We at the Pro-Choice Alliance for Responsible Research believe that social justice, safety, and human rights must be paramount in public policy and private practice in emerging biotechnologies, and we are striving to assess commercial surrogacy from that perspective. The surrounding quandaries are many and complex, especially for women working as surrogates and the children they bear, but also for commissioning parents. Consider:

  • By definition, commercial surrogacy operates in a market context. At a minimum, that means we should look closely at supply and demand, power and control, and workers’ safety and rights. In a world of stark inequalities, outright exploitation in cross-border surrogacy arrangements is not surprising.
  • In the real world, contract pregnancy is a class issue. We won’t see many women working as surrogates for people who are less privileged or affluent than they are.
  • Regulation of contract pregnancy varies wildly among countries, and within the United States it is mostly absent and usually inadequate. In most jurisdictions, for example, surrogacy brokers and agents are completely unlicensed. This policy hodgepodge has facilitated numerous scandals that have harmed surrogates, commissioning parents, and children, including the infamous case in which prominent surrogacy attorneys were running what the FBI termed an international “baby selling ring.”
  • Many women working as surrogates are subjected to strict limits on where they live and travel, whom they see, what they do, and what they eat. How many commissioning parents know that the women in India who will bear and deliver their children typically sign contracts in a language they cannot read, live apart from their own children for the duration of their pregnancy, are prohibited from seeking independent medical advice, and must sign away their abortion rights?
  • Contract pregnancies are often delivered by cesarean section in the absence of medical indication, in large part for the convenience of commissioning parents. C-sections carry greater risk for both mother and baby—especially for women who may subsequently have children of their own without ready access to high-tech medical care. Many countries have chosen to ban surrogacy, including the Scandinavian countries, the UK, France, and Canada. By any social indicator, all are more “feminist” and protect abortion rights far more strongly than the United States.

Even these brief notes demonstrate that surrogacy is a complex issue for all those involved. From the point of view of commissioning parents, surrogacy involves not only themselves but the woman who is carrying the child or children they have commissioned and, more and more often, another woman from whose ovaries eggs will be harvested. From the point of view of women working as surrogates, it’s about whether, and under what conditions and restrictions, and for what payment, to undertake a pregnancy for someone else. And let’s not forget the interests of the children who result from contract pregnancies.

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We need to insist on adequate safety data, responsible policies and oversight, and more information to help women make informed choices, whether they are providers or buyers of surrogacy services. Until those conditions are in place, we can’t know whether a surrogacy arrangement is a truly informed and non-coercive contract in which all understand the short-term and long-term implications. We know enough about on-the-ground conditions of commercial surrogacy (and commercial egg retrieval) to be convinced that caution is warranted, and that policies to help ensure everyone’s rights and well-being are needed.

The commercial surrogacy market is growing and spreading rapidly. Because third parties are involved, the messy issues it raises are appropriate matters for public policy. They are also matters about which feminists should think carefully. Having insisted so powerfully on women’s rights, how do we ensure that we are not pitting one woman’s rights and well-being against another’s? Having fought so hard for our own bodily autonomy, do we really want to partake in arrangements that curtail other women’s?

We need this conversation and we need it soon. Shutting down careful examination of commercial surrogacy is not in our interests. Invoking “choice” and “paternalism,” as if those were the final words about contract pregnancy, is a mistake. These moves ill serve all the parties to commercial surrogacy arrangements, our own political and intellectual integrity, and our ongoing struggles for reproductive justice.

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