April 14, 2013
Varying laws can complicate surrogacy
By Stephanie Lee
If Jennifer Benito-Kowalski could have had her way, she wouldn't have shipped her eggs to India.
Determined to have a child but unable to conceive and unwilling to adopt, the San Carlos woman considered hiring a Bay Area surrogate in early 2012.
But the cost was high - more than $100,000 - and surrogacy in the United States sounded like a nightmare. She feared a repeat of a case in New Jersey, where a surrogate took back the baby she had carried from its intended parents.
"I didn't want to take any chances" of that happening, said Benito-Kowalski, 40. So she and her husband, Steve Kowalski, mailed their embryos to a clinic in India, where surrogacy was just $25,000 and seemed, at least at the time, more clear cut.
There and elsewhere around the world, including in California, surrogacy has become lucrative as demand has risen in recent years. But the laws governing it differ among countries, states and counties, with each jurisdiction carving out its own permissive or prohibitive stance on pay, parental rights and contract validity.
These differences have set the stage for high-profile legal battles involving surrogates who flee states to keep a child that isn't genetically theirs, and babies who can't be brought home to nations that don't recognize surrogacy.
The laws not only vary, they are constantly changing. In India, for example, after years of letting clinics and agencies handle surrogacies, the government said last month that it intends to introduce a bill to monitor assisted-reproduction technology clinics and banks.
The announcement was the most recent move to tighten surrogacy regulations. In December, officials said same-sex couples, singles and newly married couples could no longer use the procedure. Current customers who fall into those categories wonder whether they will be allowed to take their children home after their surrogates give birth. While the changes won't affect the Kowalskis, who are planning to pick up their baby in May, they do underscore the uncertainty that pervades this heavily debated, largely unregulated process.
In the words of Andrew Vorzimer, a reproductive law attorney in Los Angeles, surrogacy is "the Wild West of reproductive medicine."
The Society for Assisted Reproductive Technology estimates that 1,500 infants nationwide are born through surrogacies annually - although experts say the actual number is much higher. In India alone, surrogacy is worth an estimated $2.3 billion.
Fight in New Jersey
Benito-Kowalski's determination to turn to India stemmed from one of the most famous surrogacy cases in the U.S., the 1988 fight over "Baby M" in New Jersey. The surrogate mother eventually won visitation rights to the baby and voided her contract, which would have entitled her to $10,000.
New Jersey now prohibits commercial surrogacies. So do Indiana, Washington, D.C., Louisiana, New York and Michigan. Nevada, Utah, Texas, Florida and Virginia allow such arrangements with caveats - in many cases, only married, heterosexual couples can enter into them.
With a little more research, Benito-Kowalski would have learned that California's guidelines are perhaps the most liberal in the nation. Based on a series of landmark court rulings, the state accepts surrogacies, including those that involve lesbian, gay, bisexual and transgender people.
A new state law further clarifies the rules to allow the intended parents to establish their parentage before the child's birth.
No national laws directly address surrogacy, so situations can get messy when state lines are crossed. Last year, a Connecticut surrogate fled to Michigan, which doesn't recognize surrogacy, in a rebuke of the intended parents' demand that she abort a girl with birth defects
"It's left to states to decide," said Vorzimer, whose firm handles 600 cases annually. "It causes tremendous uncertainty, it causes a lot of anxiety and unfortunately, it leads to couples having or choosing to work in states where they really have no business doing this."
The relative lack of regulation leaves room for financial and ethical shenanigans, Vorzimer said. The former owner of SurroGenesis, a surrogacy agency in Modesto, recently pleaded guilty to wire fraud after allegedly bilking would-be parents out of millions of dollars.
Vorzimer would like to see national legislation. But Melissa Brisman, a reproductive law attorney in New Jersey, said passing a standard on a national level that pleases everyone would be difficult.
"Once you try to legislate something like surrogacy, it has deeply religious connotations, so it may become illegal in all states if Republicans do not want any sort of legislation that may have any implication on abortion or IVF," she said.
The American Society for Reproductive Medicine, which represents fertility physicians, has recommendations for surrogacy that include screening sperm and egg donors for genetic diseases, and checking surrogates for psychological problems and sexually transmitted diseases.
But those aren't laws. Sean Tipton, a lobbyist for the group, said he believes national legislation is unlikely to ever pass.
Aside from the customers who have been personally disappointed by surrogacy, there isn't a large and vocal group of people who want more rules, said Arthur Caplan, a medical ethics professor at New York University.
"The industry doesn't like regulation; the people who use it don't like regulation," he said. "There's no Association of Children About to Be Born by Surrogate Mothers."
Outside the U.S., the laws are just as varied. Commercial surrogacy is illegal in Australia, France, Hong Kong, Saudi Arabia and Italy, but accepted in Panama, Ukraine, Thailand and India.
So when people seek to start a family overseas, citizenship clashes can arise. In 2008, a baby girl was left stateless after a Japanese couple divorced during their Indian surrogate's pregnancy, the genetic mother gave up the newborn and Japan refused to recognize the child.
"In some countries, the notion of a surrogate violates cultural ideas about how you need to be biologically related through marriage in terms of having a child," Caplan said. "You can't use donor eggs, you can't use a surrogate, you can't do anything that goes outside the lineage of marriage, and many Middle Eastern and Islamic countries believe that."
India's recent decision to limit surrogacy to heterosexual couples who have been married at least two years likely reflects a desire to ensure that the baby will be born into a stable home, Caplan said. But it doesn't necessarily better protect surrogates, infants or customers.
"It's a 'buyer beware' situation," he said. "You can't really rely on a contract."
On Saturday, Benito-Kowalski had a baby shower. She is getting immunization shots and is looking forward to her trip to India. But she'll be even more excited to leave India - with her baby and, she hopes, without any problems.
"I just wish there was more protections involved for the intended parents," she said. "Nothing is a guarantee. People can change their mind."
Stephanie M. Lee is a San Francisco Chronicle staff writer. E-mail: firstname.lastname@example.org Twitter: @stephaniemlee