Surrogacy

How Commercial Surrogacy Should Be

Oregon's example shows the benefits of a surrogacy market governed by voluntary contracts rather than strict state regulation.

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Mardi Palan/Instagram

"An Explicit Contract Makes Surrogacy Viable for an Oregon Woman," reads the NPR headline. What follows is a story that's surprisingly absent calls for more government intervention into commercial surrogacy. In fact, it makes a great case for a less-regulated surrogacy market governed by careful contracts between involved parties. 

The story centers on Mardi Palan, an Oregon hairdresser and mother who's serving as a surrogate for a gay couple from Israel. The plan is for Palan to gestate two embryos, each created from a donor egg fertilized with sperm from one of the two fathers.

"I carried my son really well and I really enjoyed being pregnant," Palan told NPR. "People mentioned surrogacy as an option to make money on the side and do something really nice for someone else."

Palans' contract has been written to cover every eventuality. The basics are that Palan will get about $25,000 if she successfully delivers a child, and another $5,000 for twins. She says she'll use it for a down payment on a home.

The contract also deals with ethical issues. It states, for example, that Palan is not selling her child, nor agreeing to terminate her parental rights. She can do that because none of her genetic material is involved. … "The analogy is that I'm the soil and someone else is the seed and someone else is the water, so we come together to make the child," she says.

The contract says Palan is getting paid for "services rendered" and compensation for any pain and emotional distress she may suffer. Palan's lawyer, Marlene Findling, says it's a good contract. "By far the vast majority of these contracts go really smoothly. This contract does protect her."

The contract is explicit about what should be done, and what Palan will be compensated, in the event of a wide variety of circumstances. "During the term of this Agreement, Gestational Carrier and Gestational Carrier's Husband agree to follow all instructions regarding sexual activity that are given to them by IVF Clinic," stipulates one section. Another instructs that, in the event of miscarriage, Palan "is entitled to receive a prorated portion of the $30,000.00 base compensation equal to the number of weeks she has been pregnant times $750.00 per week, less whatever base compensation payments already have been made to Gestational Carrier, to be mailed within ten (10) business days of the termination."

If Palan "is pregnant with multiples, the base compensation will be increased by $5,000.00 for each additional Child." Once pregnancy is confirmed, she "will receive $500.00 for maternity clothing expenses (or $750.00 if she is pregnant with multiples), to be sent within ten (10) business days following the completion of the twelfth (12th) week of gestation." If the pregnancy damages Palan's fallopian tubes or ovaries, she will receive an extra $2,500.

"The contract needs to be black and white, because there has to be some clarity at one point in the process regarding expectations," John Chally, director of the NW Surrogacy Center in Portland, told NPR. But "as with most of those things, those contracts don't describe relationships between people."

Chally's comments seem directed at the inevitable crowd who will bristle at such starkly commercial terms being attached to human reproduction. Yet for those who can put aside moral squeamishness, contracts like these show the emptiness of anti-surrogacy arguments based on the alleged insurmountable nature of legal complications, as well as assertions that legal surrogacy must involve strict oversight by state or federal government. Chally has helped facilitate successful commercial surrogacy arrangements in Portland with clients from 23 different countries. 

Oregon has, according to NPR, become something of a hotbed of commercial surrogacy activity in the U.S., owing to "lenient laws, a critical mass of successful fertility clinics and a system for amending a birth certificate pre-birth." In neighboring Washington, however, surrogacy for profit is strictly prohibited. So it goes, too in New York, Oklahoma (where surrogacy contracts are considered a form of criminal child trafficking), Michigan (where gestating-for-pay could land you five years jail time), and many other states. Reason TV took a look at state surrogacy laws, and one New York lawmakers' quest to change them in his state, this past March. Check it out below:

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  1. Meh. Any contract is only as good as the judge who might eventually have to interpret it.

  2. Jesus Christ, 25k seems low.

    1. Yeah, I’d say at least double, plus expenses.

      1. That’s exactly why no one has approached you to gestate their baby.

        1. That’s because lessons have been learned, Hugh.

            1. That was the lesson!!!

  3. But if surrogates are allowed to sell their services, only the wealthy will be able to afford surrogacy.

    /proglogic

    1. We just have to make surrogacy payments coverable under Medicaid.

      /proglogic.

  4. The only way to do this is to absolutely make people live with the consequences of their decision. And that means forcibly taking babies away from unwilling mothers to enforce the contract. While that may in the larger context be the right thing to do, no way is it going to happen.

    1. The state abducts children from unwilling mothers all the time, over incidents much more trivial than breach of contract.

      But upholding a commercial arrangement over social sentiment probably *is* a bridge too far for the courts.

    2. I don’t see this as that complicated. If the mother changes her mind, she pays back the money she’s been given. The punishment is financial – not tearing the baby away.

      What I do know is that the state with its regulations and laws won’t find a better solution.

      1. I don’t see this as that complicated. If the mother changes her mind, she pays back the money she’s been given.

        The surrogate isn’t the “mother.” Genetically they aren’t her babies. Whoever donated the eggs would have closer familial claim.

        1. Exactly. The egg and sperm donors could simply request a DNA test to determine parentage and the surrogate would lose. This is why the contract is so meaningful. “She’s not the parent of this child. She performed a valuable service. She has been compensated for her efforts like any other job.”

    3. Courts don’t really enforce contracts like that. For example, if you signed an employment contract for one year and were paid up front, a court would not compel you to work the entire year even if you promised you would in writing. There’d just be some financial penalties potentially.

  5. “I really enjoyed being pregnant,”

    I wouldn’t contract with a liar.

    1. My brother’s girlfriend is midway through her pregnancy. He has a great deal of fun playing up how tough the pregnancy is for him. Drives her crazy.

    2. A 10 lb. breech will fix dat.

    3. Some women do. I would not want to associate with those women, but they exist.

    4. I wouldn’t contract with a liar.

      IDK, if there were some process that made men crabby once a month, depressed appetite, and caused them to worry about shoes incessantly, and somebody said they loved it, I’d know *they* were lying too.

      I know *I* enjoyed Mrs. Casual’s company during/after pregnancy more than prior. Making her too heavy, tired, and content to hassle with 90% of the stuff that she constantly frets over was awesome. A voracious appetite for ‘man food’ doesn’t hurt either.

    5. I enjoyed being pregnant. I had five babies. All but the last month. The last month was no fun, but it’s only 30 days. I however am a woman designed by nature to be pregnant. No morning sickness, super fast labors, weight gain of 25lbs for the entire pregnancy, and no appreciable stretch marks. When my husband went to have his vasectomy, the doc gave him a load of grief because he was still in his twenties. But then hubby won undying love from me by replying, “Have you SEEN my wife? We’ve had five kids already. If I don’t get fixed now we’re going to have 20.”
      If I weren’t so old now, and I lived in Oregon, I would totally do the surrogacy thing. Easy money.

  6. +1 Wyoming Knott and Friday Baldwin

  7. A contract between consenting adults can possibly capture the reality of human relationships (per NPR), but they think that government regulators and politicians with one-size-fits all rules can do the job.

    These people just like to fucking tell other people what to do. That’s it. There is no viable rational argument against surrogacy.

    1. “It’s Adam and Eve, not Adam and Eve and Lisa!”

    2. There is no viable rational argument against surrogacy.

      But there are so many irrational arguments.

  8. We seem to be on the frontier with surrogacy laws. Montana doesn’t even have any law addressing it, at least according to the attorney handling my and my wife’s surrogacy contract.

    1. CHAOS!

  9. Wait, a human being is the subject of bargain and sale?

    I seem to recall a war being fought over this issue…I seem to recall that a flag which symbolized the sale of human beings being taken off of public buildings quite recently.

    Could it possibly get any worse?

    Oh, wait, I suppose it could. Per the contract:

    “If Intended Parents jointly request Gestational Carrier to terminate the pregnancy because of the Child’s medical condition(s), she will do so promptly.”

    Let’s give credit where credit is due. In the antebellum era in the USA, slavers didn’t require the *murder* of their slaves, they just wanted to exploit their labor.

    1. If I may quote Thomas Jefferson in a similar context:

      “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever…”

      http://teachingamericanhistory…..i-manners/

  10. So are transgender women going to sue people who refuse to hire them for this?

    After all, they are women.

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