Virginia Surrogacy Bill Doesn't Go Far Enough

Allowing surrogacy brokers to be paid is good. Allowing surrogates themselves to be paid would be better.

Virginia is on the verge of legalizing surrogacy brokers. A bill sent to Gov. Glenn Youngkin last week would repeal the state's ban on accepting compensation for facilitating surrogacy arrangements. The Republican governor has through March 8 to sign the bill into law.

Getting rid of the ban on brokering surrogacy is a good idea. But Virginia should go further and ditch its ban on commercial surrogacy, too.

Obsolete and Paternalistic

Under current law, it's a Class 1 misdemeanor for any person or business "to accept compensation for recruiting or procuring surrogates or…otherwise arranging or inducing an intended parent and surrogates to enter into surrogacy contracts." Doing so is punishable by up to a year in jail or a fine of up to $2,500. Someone in violation of this law could also be sued by parties to the brokered surrogacy contract.

"This 30-year-old statute is just absolutely obsolete, and it's not enforced," family law attorney Colleen Maria Quinn told a House subcommittee in January.

Yet House Bill 110, the measure repealing this provision, has been controversial—perhaps surprisingly so, considering that the old law is not being used and that actual surrogacy for pay would still be banned. In the Virginia House, votes on the measure were nearly evenly split (50–48).

The surrogacy brokerage ban was passed with an eye toward preventing people from being coerced into surrogacy, notes the Virginia Mercury. Some lawmakers have suggested that ending the brokerage ban would mean more coercion. But there are less extreme mechanisms that can ensure everything is on the up and up. As a surrogate, "you've got to have your own lawyer, for goodness' sake,'' Del. Rip Sullivan (D-Fairfax) said at the January subcommittee hearing. And this attorney is "obligated to make sure [a surrogate is] acting of [her] own free will."

To recap: A woman can say she consents to be a surrogate, show through her actions that she consents to be a surrogate, have a lawyer attest to her consent to be a surrogate…and some people will still worry that she didn't really consent to be a surrogate.

This is, alas, par for the paternalistic course when it comes to women's decisions involving their bodies.

A certain sort of person will never be convinced that a woman would willingly become a surrogate, or get an abortion, or engage in sex for pay, and so on. So they deny the agency of women who do, in fact, willingly do these things. And they use this alleged lack of agency to justify roadblocks for women's "protection."

In this case, a woman who wants to be a surrogate is not only barred from being paid for her services, she also needs a court-appointed lawyer to speak for her so the state will see her as apable of speaking for herself.

Now Let People Pay Surrogates

There should be no ban on commercial surrogacy. Surrogacy is good for women and good for families (something I elaborated on in a recent op-ed for The Dispatch). It helps families have biological children they may not otherwise be able to have, and it can provide income and purpose to those serving as surrogates.

There's been a good deal of research on surrogate mothers that counters conservative and radical feminist fears about the process. Far from being a last resort that only women with no other financial prospects do, surrogacy is often undertaken by women with altruistic as well as financial motives. Surrogates often report that their experiences are positive, harmonious, and meaningful. Decades of research on surrogate experiences has found that many are emotionally and psychologically well-adjusted. Studies also suggest that surrogates seldom regret the experience years later.

Of course, such positive experiences aren't going to be universal. But we don't generally ban things just because some fraction of people have negative experiences. In fact, it's a bad idea to ban things based on the prevalence of positive or negative feelings about them at all. Is isn't the government's job to protect adults' emotional well-being.

In this and so many other matters, the government should get out of the way and let consenting adults contract as they see fit.

Virginia lawmakers are right to repeal the state's ban on surrogacy brokers. Next they should repeal the laws that forbid direct payment for the service of surrogacy and that allow surrogate compensation only for costs associated with the pregnancy.

They should also do away with laws making the whole process more burdensome for all  parties and giving the government final say over whether surrogacy arrangements are OK. Under current Virginia law, a court must approve all surrogacy contracts and the approval is only good for 12 months. To get approval, intended parents and surrogates must pass a home fitness and parental fitness investigation undertaken by a social service worker or child welfare agent. They also have to undergo "counseling concerning the effects of the surrogacy." In addition, the surrogate must prove that she has given birth at least once before and the intended parents must prove that they are infertile or unable to bear a child "without unreasonable risk." And all parties must undergo "physical examinations and psychological evaluation" and turn records of such over to the court. Only if all of these conditions are acceptably met will the state give people permission to go forward with a surrogacy contract.

Underlying all of this is the idea that women are too dumb or fragile to make decisions about their own bodies and that the state should get to say who's allowed to form families and under what circumstances. These ideas need to go, as does the idea that economic concerns can render consent invalid.

As Virginia Del. Candi Mundon King (D–Prince William) told her colleagues during the legislative debate, "being economically disadvantaged does not make you any less intelligent. It does not make you any less able to make your own decisions, whether they be financial, health or otherwise. We should be careful not to stigmatize those who are economically disadvantaged or put them into a category that they cannot understand how complicated and deeply personal surrogacy is."

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Colonial Beach, Virginia | 2018 (ENB/Reason)