By Steve Snyder, executive director of IARC
The recent case of Pattaramon Chanbua has propagated a lot of criticism of unregulated surrogacy. Surrogacy is widely unregulated globally. Even within the U.S., surrogacy laws are disparate across state lines. In the current context of national and international law, this case serves as a crucial reminder of the importance of securing a reputable agency led by a lawyer experienced in fertility laws to protect the rights and interests of all parties involved in the surrogacy process: the surrogate, the child (or children) and the intended parents. Secondly, the case reveals four sensitive considerations in the matter of regulating an industry that involves the elaborate emotions and physical well-being of many parties.
For those unfamiliar with the case, it involves a Thai woman named Pattaramon Chanbua who was contracted by an Australian couple as their surrogate. One of the children conceived was diagnosed with Down syndrome, and from there the case gets complicated. Many of the facts of the case vary across the wide-spread coverage and have yet to be verified by a reliable source. For details on the case, read these articles from The Wall Street Journal and PBS that summarize the complexity and conflicting reports of the case.
This case brings to light four important questions to consider:
- What should be done to prevent horrible tragedies such as this?
- What role, if any, should the third parties that facilitate surrogacy agreements play in screening and refusing service to those deemed “bad” parents?
- Should intended parents have the right to manage the pregnancy?
- Do intended parents have the right to refuse a child after the birth?
Let’s tackle these questions one-by-one.
Should Surrogacy be Banned
Humans have a fundamental drive and need to procreate. Procreation is directly linked to a genetic need to survive. The unfortunate truth is that many people who desire to conceive suffer the heartbreaking inability to do so. The Center for Disease Control and Prevention estimates 6.7 million women between the ages of 15 and 44 have an impaired ability to get pregnant and carry a baby to term. It is estimated, 7.4 million women have utilized infertility services to help them conceive. This macro statistic demonstrates that millions of people within the U.S. are trying to get pregnant despite their physiological inability to do so. If the option to use surrogacy as a way to overcome this physiological inability is removed, there is no question the market will simply be driven underground. The need to procreate will still exist and, subsequently, so will surrogacy. A completely unregulated black market will unquestionably proliferate the number of stories like Ms. Chanbua’s. Australian states already criminalize commercial surrogacy while Thailand has no laws to regulate surrogacy. This case is a direct example of what happens when surrogacy is banned and people are forced to turn to unregulated markets to procreate.
Couples that wish to be intended parents or women that wish to be surrogates should be familiar with regulations within their state. A reputable surrogacy agency can answer any questions you may have and ensure the surrogacy process operates safely within the law.
Third-Party Screening for Surrogacy
This case has called into question the ability of a third-party service to screen and deny the ability to carry or adopt a child. We all know that there are many people with criminal backgrounds or poor financial standings that have children through natural means. These individuals are afforded a constitutional right to do so. Similarly, many third parties that facilitate surrogacy agreements are hesitant to deny the right to procreation based on arbitrary factors.
Instead, reputable third-party agencies conduct psycho-social evaluations and criminal background checks to determine if any “red flags” exist. Any alerts that are determined to exist are then communicated with the intended parents and the surrogate so the affected parties may choose whether or not to enter into the voluntary contractual agreement. Many third-party facilitators strongly believe with the appropriate information, intended parents and surrogates can, and will, self-regulate the industry.
The Right to Manage the Pregnancy
This right is one of the most sensitive and complex issues surrounding surrogacy. This issue alone is evidence that a knowledgeable surrogacy agency, which can navigate the rights, needs and values of intended parents, surrogates, and the child, is an imperative piece of the puzzle. In the context of Ms. Chanbua’s case, the management of the pregnancy refers to the right the intended parents had to ask Ms. Chanbua to abort the child diagnosed with Down syndrome. While difficult, this issue can arise in surrogacy.
In the traditional discussion of abortion there are two rights widely discussed: the woman’s right to control her body and the child’s right to be born. In surrogacy, this confluence of circumstances no longer exists.
Take for example, a gestational surrogacy (the surrogate mother is implanted with an embryo that contains the egg and sperm of the intended parents). In a gestational surrogacy, the surrogate has no biological connection to the child. Also consider that the biological parents spent substantial time and money securing a surrogate and completing the gestational procedures. It is likely if the surrogate were to abort that the parents would no longer have the resources to conceive the child they’ve longed for. In this example you can see just how intricate a surrogacy agreement can become. Consulting with a licensed attorney can help to balance and uphold the rights of all involved parties.
Intended Parents’ Rights
This real-life case is living proof of the types of tragedy that can occur if a recognized and respected agency does not preserve the best interests of all parties involved. While surrogacy can be a wonderful, joyous experience, as with natural birth, there is the possibility of complications arising. For this reason, it is important both intended parents and surrogates consider their responsibilities in the same manner as though they were experiencing a natural pregnancy. In the lens of this specific example, the parents should not have the right to choose not to receive the child, since that is never an option after the birth of a naturally-conceived child. Just as the case of a natural pregnancy, the intended parents should have the right to put the child up for adoption, should they decide they do not have appropriate means to care for the child’s best interests.
The lack and variation of regulations across international borders can increase the complications involved in the surrogacy process. Even within the U.S. the aforementioned complexities can exist. This means it is crucial to speak with experts that understand the law and how to maintain the best interests of each party involved.
To learn more or discuss surrogacy with our experts, contact our experienced, multilingual staff at 763.494.8800.