Peril of rent a womb in California
A ‘Wild West’ that fails to protect the child’s rights
Kim Kardashian has announced that she and Kanye West will be creating their third baby by in vitro fertilization, and implanting it in a paid gestational surrogate. The woman who carries the baby will be paid $45,000 for the nine-month rental of her womb. Kardashian joins model Tyra Banks and actresses Nicole Kidman, Elizabeth Banks and Sarah Jessica Parker in choosing the surrogate route.
California has become a global hot spot for surrogacy because it has some of the most permissive laws. What’s missing from all the star-studded media coverage of surrogacy is a dialogue about the rights of the child and what California must do to ensure the rights of children born through surrogacy.
The 1989 U.N. Convention on the Rights of the Child set forth a broad framework for the protection of children, but the United States is the only country in the world that has not ratified the convention. And the lack of federal regulation has allowed a type of “Wild West” to develop for assisted reproduction in states such as California. This is a testament to a legal environment that has failed to put our children first, both in our state and nationally.
California started to become a surrogacy destination in 1993, after a ruling in a pivotal case, Johnson vs. Calvert. At the time of the case, California law stated that “the woman who gives birth” is the mother. In rendering its decision, the state Supreme Court did not dwell on the significance of pregnancy and childbirth, or on the genetic connection between the child and Ms. Calvert, the woman who commissioned the surrogate. Instead, borrowing from intellectual property law, the court articulated a new doctrine of “intentional motherhood”.
The court said when the two means (genetic tie and giving birth) do not coincide in the same woman, she who intended to bring about the birth of a child that she raised as her own — is the natural mother under California law.
With the new standard of the intentional mother, the court awarded the child to the Calverts.
One justice, Joyce L. Kennard, dissented. Recognizing that both women had substantial motherhood claims, she asked: What are “the best interests of the child?” Criticizing the concept of intentional motherhood, she pointed out, “The problem with this argument, of course, is that children are not property. Unlike songs and inventions, rights in children cannot be sold for consideration or made freely available to the public.”
California now offers many procedures that are outlawed in other parts of the world. For example, California allows clients to choose the child’s sex, which attracts parents from around the world who want a boy. California also allows fathers to be the only parent listed on the child’s birth certificate, removing any legal connection to the egg donor or surrogate mother. And California also offers international clients the perk of having a child who becomes a U.S. citizen.
Gestational surrogacy was born in 1978 with the invention of IVF, which allowed parents to conceive an embryo outside the body. It has been a great boon for women with medical challenges (Kardashian’s first and second pregnancies required surgeries). But it is now also chosen by those who want to select the best embryo prior to insertion in the uterus, the “designer baby.” There is a huge market for premium eggs, which can be purchased online from large cryobanks, or directly from the donor. Sometimes gestational surrogacy is chosen by those who simply do not want the hardship of carrying a baby and can afford to pay someone else to bear it. The surrogate is not the genetic mother, and typically will never see the child again after it is born.
But the results for children can be mind-boggling. The combination of donor eggs and sperm with a gestational surrogate yields children with as many as five parents: a surrogate mother, a genetic mother, a legal mother, a genetic father, and a legal mother/father (depending on whether the clients are a same-sex couple). In 2016, California amended the law to include a third parent, a step in the right direction.
Ultimately there are five children’s rights that must be addressed with surrogacy, in California and across the United States. The right:
1) To know the identity of their genetic parents and their surrogate.
2) To have a healthy surrogate, who is medically evaluated before and during the pregnancy.
3) For a child to have his or her biological parents, legal parents and surrogate listed on the birth certificate.
4) To citizenship in the country where he or she is born, or where one legal parent is a citizen.
5) To universal standards to ensure that surrogates are treated equally in all countries.
Only when all five of these rights are met will children born through surrogacy have the same rights as those who are not.