America: The Wild West of Family Planning

Reproductive medicine has hardly any legal restrictions in the U.S. That has created a multi-billion-dollar market for donated eggs and surrogate mothers — and ethical abysses.

$50,000: That’s how much an anonymous couple offered female students at the elite Brown University for egg donations. $1.90 per hour: That’s how much some surrogate mothers receive for bearing the child of total strangers. $2 million: This is the minimum financial damage inflicted by the fraudulent operator of a fertility clinic in California on trusting couples who wanted to fulfill their desire for children over the Internet.

The absence of nationwide guidelines for the donation of eggs and the occupation of surrogate mothers has allowed a multi-billion-dollar market to develop. Although surrogacy makes children possible for infertile couples, homosexuals and confirmed singles, it also poses fundamentally ethical and legal problems.

Artificial insemination, egg donation and surrogate motherhood provided revenue of more than $3 billion in 2003, according to investigations by Deborah L. Spar, president of Barnard College of Columbia University in New York. There are no reliable numbers for the size of this market today. It is certain, however, that it has grown. According to the Centers for Disease Control and Prevention — the U.S. agency that gathers data related to public health — at least 5,767 babies developed from donated eggs were born in 2003. In fact, there are more, but the statistics only record the number of births, not the number of babies. In 2010, the most current year for which there are figures, there were at least 7,831 babies born from donated eggs — a rise of about 36 percent.

Every day in America, at least 21 children come into the world who do not descend from their legal mother. They originate from donated eggs. This is strictly forbidden in Austria. In the U.S., one only needs a lawyer to draft a corresponding contract between the donor and the recipient. If a woman is implanted with a donated egg, she becomes the legally recognized mother. What a woman receives for the donation of her egg, aside from the burdensome hormone treatment and extensive medical tests, is not regulated. The American Society of Reproductive Medicine, an association of reproductive doctors, has only imposed a non-binding code of behavior: Payments in excess of $5,000 must have justification. If a donor receives more than $10,000, it is “not appropriate.”

Donors in Demand

In practice, hardly anyone adheres to these rules of good will. Young, healthy and intelligent donors are especially in demand. Ads appear again and again in locations near renowned universities such as Yale or Harvard in order to target students at these elite schools. A few years ago, a $50,000 ad in the Brown Daily Herald for “an extraordinary egg donor” caused a furor.

In the mid-‘80s, a new market opened for young women from poorer families or ethnic minorities who were capable of bearing children. And so, in America, more and more children are born to “surrogate” mothers. In 2006, according to the previously cited American Society of Reproductive Medicine, there were 1,059 births by surrogate motherhood. Daily, then, three American mothers give birth to children that they know they do not want to keep. Surrogate motherhood is, differently from mere egg donation, legally regulated in some states, but there is no national framework because the practice of medicine is a matter for the states. The 50 legislatures from Alaska to Florida can more or less do whatever they want.

Some go very far: California enacted a law last fall, after a decades-long campaign by homosexual organizations, which allowed same-sex couples to immediately become the recognized parents of children that they have born through surrogate mothers. A similar law was enacted in Connecticut in 2012.

Other states, on the other hand, are fairly restrictive. Michigan, for example, punishes commercial surrogate motherhood with up to five years in prison. Contracts regarding the procurement of surrogate mothers are null and void according to Michigan law. Other states have no legal provisions at all. Whether and how clients and surrogate mothers agree to such a thing is purely a question of contracts under private law. In a conversation with Presse am Sonntag — the Sunday edition of Die Presse — George J. Annas, renowned expert in medical law at Boston University, noted that “people can virtually shop around on the Internet for willing surrogate mothers.”*

The Case of “Baby M”

Most of the time, it works out in mutual agreement. But when something goes wrong, the patchwork of state laws provide only for tragedies. In March 1986, for example, surrogate mother Mary Beth Whitehead, 29-year-old mother of two from a humble background, refused to give over her newborn baby to the clients, the Sterns, a rich couple. She fled from New Jersey to Florida, where she was arrested by police and the child was given over to the Sterns. Whitehead’s lawsuit went through all levels of courts in New Jersey until it finally landed before the Supreme Court of the state.

For the first time, the court considered the question of whether a surrogate mother could assert her claim for the child she carried for other people. Judge Robert Wilentz decided in favor of Mrs. Whitehead and declared the contract invalid, because she could have in no way made the decision of her own free will: “There are, in a civilized society, some things that money cannot buy.” (The Sterns later received full custody and Mrs. Whitehead was awarded mere visitation rights.) This verdict did not offer legal clarity. The only tangible consequence of the “Baby M” case is that surrogate mothers today typically carry the eggs of other donors. In other words, an infertile woman or a woman unable to give birth — or a homosexual man — engages the services of a donor and a surrogate mother to bring a child into the world that immediately becomes hers or, as the case may be, his.

That is an expensive undertaking. Surrogacy costs — including all costs for lawyers, doctors and health insurance — from $65,000 upward to about $140,000. The surrogate mother sees the smallest portion of that. Some surrogate mothers only receive $12,000. Spread out over 266 days of pregnancy, that comes to an “hourly wage” of $1.90.

The biggest profit is made by a myriad of middlemen. Even now, the line to crime is thin. Tonya Collins, a deceptive head of a surrogate mother agency, cheated several trusting couples out of more than $2 million in only three years. She also drew hapless surrogate mothers into misfortune: Salina Martinez, a 25 year-old single mother, lost her health insurance in the 14th week of pregnancy because Collins’ agency had not paid the bills. Facing ruin, she had to move the recipients, an unsuspecting couple from Spain, to pay the bills by threatening to abort the child.

Fraudulent Collins was arrested by the FBI in April 2012 after three years on the run and persistent investigative shows by PBS television. She had cheated more than 100 couples.

*Editor’s Note: The original quotation, accurately translated, could not be verified.