What the pope is missing about commercial surrogacy

Over the past few years, I have watched a wonderful young boy I’ll call Chad grow up smart and full of life. His parents, a gay couple with whom I am friends, used a gestational surrogate, Mary (also a pseudonym), a kind, down-to-earth woman whom I have also met.

I have been thinking of him recently when I read Pope Francis’ recent comments about surrogacy.

On Jan. 7, Pope Francis stated that commercial surrogacy was “despicable” and “inhuman,” since “women, almost always poor women, are exploited,” and a child may be “turned into an object of trafficking.” Several other Christian leaders have since echoed him.

The pope has done extraordinary work supporting the poor and underserved. And as a bioethicist who has studied surrogacy, I understand his concerns. But the problems he raises, while real, are not inevitable. Laws and guidelines in several states in the U.S., as well as in the U.K. and elsewhere, have addressed and reduced these potential pitfalls. Data from these locations suggest that these possible harms need not occur and can be effectively prevented. Rather than shut down a pathway to families that can be rewarding (including, yes, financially) to surrogates, the pope should be advocating for these better policies to protect women at risk of exploitation around the world.

Surrogacy is, literally, as old as the Bible. In the Old Testament, Abraham and Sarah are unable to have a child, and she arranges for him to impregnate her Egyptian slave, Hagar, to produce an heir. Hagar then gave birth to a child, Ishmael. Only afterward did Sarah give birth to Isaac.

Yet Abraham and Sarah are hardly alone. Twenty percent of all heterosexual couples are infertile — around 9% of all men and 11% of all women. Many who would like to be parents cannot for medical reasons; others, such as same-sex couples, also need help.

Throughout history, countless couples have wanted to be parents but remained childless. Others have adopted infants. But fewer babies, overall, are now put up for adoption, making this process harder,. Like Sarah, a few such women arranged for surrogates, sometimes a sister or friend, but rarely and usually quietly, due to embarrassment.

That changed in 1984, with the so-called Baby M case. Elizabeth Stern and her husband wanted to have a child, but she had multiple sclerosis that, she worried, pregnancy would aggravate. The couple advertised in a newspaper, and Mary Beth Whitehead responded and agreed to serve as a traditional surrogate. After giving birth, however, Whitehead wanted to keep the baby. A New Jersey court eventually gave the Sterns custody of the child, but prohibited any future such surrogacy arrangements.

The advent and spread of in vitro fertilization, or IVF, starting with the birth of Louise Brown in 1978, dramatically altered surrogacy possibilities. In IVF, a sperm fertilizes an egg outside the body, creating an embryo, which doctors usually then place in the womb of the woman who supplied the egg. However, doctors could, alternatively, place this embryo in the uterus of another woman, who will then carry (or “gestate”) the fetus. This second woman is then a gestational surrogate.

So-called traditional surrogates, such as Hagar, provide both their egg and their womb. In contrast, gestational surrogates offer only their womb, while another woman — usually the intended parent — provides the egg. All this may evoke a “yuck” response, since it is relatively new and hence unfamiliar. But historically, other new technologies — including birth control pills and IVF itself — have also initially make some people uncomfortable, only to become widely accepted.

Many countries now permit gestational surrogacy, though laws vary. The U.K., for instance, allows the intended parents only to reimburse the surrogate for expenses, not to pay her additionally for her time or as profit. In contrast, several states, including California and recently New York, and a few other countries allow for so-called “commercial” surrogacy, in which a woman can be paid and compensated more, often $60,000 to $100,000.

Such “commercial surrogacy” has raised fears and controversies, as the pope’s comments suggest. Yet variou­­­s states and countries have developed regulations and policies to prevent such problems. Governments in California, New York, and elsewhere require careful informed consent and legal contracts, with separate lawyers representing the intended parents and the surrogate. The intended parent pays the legal fees. New York state, for instance, requires that all companies engaged in surrogacy be licensed by the state and gives surrogates rights to terminate the pregnancy if they wish. The intended parents must also cover health insurance, disability insurance, life insurance, and mental health counseling. To avoid human trafficking from poorer countries, surrogates need to be U.S. citizens or permanent legal residents.

New York’s regulations also incorporate careful guidelines from the American Society for Reproductive Medicine, which state that gestational surrogates should have previously given birth to their own children and are thus aware of what to expect from pregnancy. These guidelines say that IVF doctors need to arrange for psychoeducational counseling, evaluating the potential surrogate, including her social and educational history, strengths and resources, “evidence of any financial or emotional coercion,” primary source of income, “interpersonal or environmental instability,” etc. These statements are now the medical standard of care, and any doctors who violate them are legally liable.

Studies find that women who decide to become commercial surrogates overwhelmingly are Caucasian and often are college graduates. Many are, for instance, middle class military wives who have several children of their own, are not otherwise working, and are happy to receive an additional $60,000 or more for carrying a baby for other potential parents. They fully understand the potential risks and feel that earning this money in this way is far better than engaging in certain other jobs. They are able to make an informed decision and do not feel exploited, fully grasping the risks and benefits involved. Altruistic goals often motivate them.

A Canadian law professor and her colleague conducted a detailed review of research, for instance, and concluded that the data on surrogates, primarily from the U.S. and the U.K., do “not support the stereotype of poor, single, young, ethnic minority women whose family, financial difficulties, or other circumstances pressure her into a surrogacy arrangement.” No evidence in the U.S. or U.K. indicates that children are being trafficked in any way as a result.

To be sure, commercial surrogacy has also existed in a few other poorer countries that lacked such strong regulations. Yet some governments, such as India and Nepal, subsequently developed such laws, and now bar commercial surrogacy for foreign parents.

Still, we should not completely dismiss the pope’s concerns. The market for couples looking for a more affordable surrogate outside the U.S. has moved to other countries now, including Georgia, Colombia, and Mexico. The pope and other sharing his concerns should focus on countries without strong regulations, instead of painting all commercial surrogacy with the same brush.

But the fact that effective laws appear able to prevent abuses should reassure us. Unfortunately, though, the available data from in the U.S., where the largest commercial surrogacy market exists, remain limited. These studies have been small, with no more than around 35 gestational surrogates each, often conducted when traditional surrogacy was the norm. Others were carried out in the U.K. or other countries where paid gestational surrogacy remains illegal. Little, if any, systematic, representative data from the U.S. have been published on whether any of these women are poor, feel exploited, and if so, who and how many, and how they view the experience now and retrospectively. More data are urgently needed.

The Centers for Disease Control and Prevention, for instance, currently asks fertility clinics to provide some data on assisted reproduction, such as numbers of IVF cycles and the success rate, but such reporting is voluntary, and the amount of nonreporting is increasing, since no penalty exists (other than being mentioned as not reporting). The CDC does not seek or publish data regarding gestational surrogates’ race, ethnicity, education, and socioeconomic status. Federal regulations could change to require clinics to provide such information to the CDC. The American Society for Reproductive Medicine does not recommend that clinics keep and report data on surrogates’ socio-demographics, but it should do so. States and countries that permit any financial transactions for surrogacy should collect and publish systematic data on surrogates’ race, ethnicity, income and views of these potential concerns.

Surrogacy enables countless prospective parents to create loving families. In all areas of society, we must ceaselessly work to avoid abuse, exploitation and human trafficking. But when I think of Chad and his birth mother, Mary, I sense love, not exploitation.

Robert Klitzman, M.D., is a professor of psychiatry, director of the masters of bioethics program at Columbia University, and the author of “Designing Babies: How Technology Is Changing the Ways We Create Children.”