In April 2020, at the start of the COVID-19 crisis, New York governor Andrew Cuomo approved a much needed state budget. Buried in this 400-page document was a provision to legalize commercial surrogacy.
Passed without the opportunity for legislative hearings or public debates, the law came into effect in February 2021. Critics claim that Cuomo is unleashing an exploitative multi-billion-dollar industry that preys on the vulnerabilities of women.
While surrogates are usually from poorer backgrounds and, in many states, are more likely to be of color and in particular black, the implanted eggs are selected from mainly white women up to the age of 25, usually highly educated and screened for any hereditary illness.
Payment for carrying a baby or babies to full term ranges between $30,000 and $60,000 across the US. And there are huge profits for Big Fertility.
As soon as the law in New York was passed, the sharks circled. ‘Compensated surrogacy will be legal in New York in February of 2021!’ reads the advertisement from Circle Surrogacy, a business that deals with everything from egg donors to finding a womb for rent.
‘This law is a direct legacy of the sexual commodification and reproductive exploitation of women,’ says Taina Bien-Aimé, executive director of the Coalition Against Trafficking in Women. ‘The law does not protect the surrogate mothers – who only exist as gestational vessels — but unleashes a predatory multi-billion-dollar reproductive technology industry whose only goal is to match very wealthy contractors with impoverished women.
I have interviewed a number of women in states where commercial surrogacy has been legal for some years, including California. Some of the surrogates have shown me the contracts they signed prior to sealing the deal with the so-called ‘commissioning parents’. They make bleak reading:
‘It is understood by the Gestational Carrier and her husband that the child to be conceived is being done for the sole purpose of giving such child to the Intended Father and the Intended Mother.’
‘The Gestational Carrier agrees she will not abort the child once conceived, except if in the professional opinion of the implanting physician, such acts are necessary for the physical health of the Gestational Carrier or the child or the child has been determined to be physiologically abnormal.’
Reproductive tourism, or the ‘rent-a-womb’ trade is usually viewed as an act of kindness, despite money changing hands, because the women who carry the babies have no other way to earn a living, and they are giving a gift of life to an infertile couple.
But surrogacy can be dangerous. A 2018 study showed that in New York there has been a 60 percent increase in maternal mortality over the past decade, with young black women three to four times more likely to die from pregnancy related complications.
Five years ago, Jessica Allen, who lives in California, signed up to be a gestational surrogate (carrying an embryo made from the egg and sperm of the commissioning parents) for a couple in China.
During an early scan a second heartbeat was detected and it was assumed Allen was carrying identical twins as a result of the embryo splitting.
When the babies were delivered, they were immediately removed from Allen, despite a prior agreement that she would be able to spend an hour with them. The commissioning parents had traveled to the US for the birth.
‘Later that day I saw a photograph of them but they did not look alike,’ says Allen. ‘But no one took any notice of what I was saying.’
A month later Allen, who had not been allowed to say goodbye to the babies as they were discharged from hospital received more photographs from the commissioning parents, asking her why the ‘twins’ did not resemble each other. ‘I told them that I had already pointed that out to them,’ says Allen, ‘One of them didn’t look Asian.’
In order for the Chinese Embassy to issue the required documentation to take the babies out of the US, proof was needed that they were the biological children of the couple, but DNA tests showed that one of them belonged to Jessica and her husband. Superfetation occurs when a woman ovulates after already conceiving, which is rare, but can happen weeks or even months after the first conception.
The baby was taken into care by the surrogacy agency as soon as the commissioning parents informed them that only one child was ‘theirs’.
After weeks of legal arguments, during which the commissioning parents demanded a refund from Allen because she ‘had not produced’ two children for them. ‘I only ever consented to one embryo being planted,’ she says.
Allen hired a lawyer to represent her in the fight to gain custody of her son. ‘The CPs were saying that they were going to adopt him out to somebody else,’ says Allen, crying. ‘Finally, when my son was two months old, we got him back.’
Linda Khan is an epidemiologist based in the departments of pediatrics and population health at New York University. Khan tells me that aside from the ‘many ethical issues involved, such as the commercialization of children,’ surrogacy is associated with higher risks of pre-eclampsia and other hypertension disorders of pregnancy.
‘Not only does it threaten the pregnancy and put the child at risk, but it also puts the women at risk for the rest of her life from cardiovascular disease for example.’
Egg ‘donation’ is marketed as safe and lucrative, but in reality can be an extremely risky business. In 2011, Kylee Kwiatkowski was 23 years old and struggling to pay her college debt when she saw an ad on Craigslist about being an egg donor.
‘I thought, “Wow, that’s a great thing. I can help a family that wants a child. I’m not using my eggs right now, make a bit of money. What could go wrong?”’
The commissioning parents were based in Canada where it was not legal for egg donors to be paid.
Kwiatkowski was treated ‘with a ton of medication’ in a Canadian clinic and immediately developed headaches bloating in her abdomen. ‘They said it was completely normal, I was fine and healthy, no big deal.’
Kwiatkowski began feeling ill immediately following the treatment. Upon arriving home to Florida, she developed chronic sickness and bloating. When she found she could neither move her arms or speak, her partner dialed 911 and she was rushed to hospital. Kwiatkowski had suffered a stroke, caused by ovarian hyperstimulation syndrome (OHSS) and her ovaries had swollen dangerously. ‘I was a risk of them bursting,’ says Kwiatkowski, ‘and had that happened, I would have died immediately.’
Clinics usually retrieve six to 10 eggs for a surrogacy procedure, but as Kwiatkowski later discovered, medics had extracted 45 in total, having given her copious amounts of medication to produce them. As Linda Khan tells me, the more eggs that are taken, the higher the risk of adverse effects for the donor. ‘But the fact that now you can freeze eggs means the clinic can sell more to a number of different couples and they only have to pay the woman once.’
Kwiatkowski would love a baby of her own but has been told by doctors that if she was to get pregnant it would be ‘very high risk’.
Surrogacy profiteers would have us believe that there are no losers in paying a woman who needs the money to carry a baby for an infertile couple, but the truth is much darker. Womb trafficking has no place in any civilized society.