Surrogacy guidelines: necessity, not convenience

 As surrogacy becomes increasingly well established in the U.S., it is regulated not only by state laws, but  also via voluntary standards put forward by trade organizations as conditions of membership.

One is  the SOCIETY FOR ETHICS IN EGG DONATION AND SURROGACY (SEEDS), which calls itself "a nonprofit organization founded by a group of egg donation and surrogacy agencies, whose purpose is to define and promote ethical behavior by all parties involved in third party reproduction." 

They have a set of guidelines published this year which member organizations are supposed to subscribe to.  One of those guidelines seems to say that surrogacy agencies should only work with intended parents who can't have children on their own. That is, they want to facilitate surrogacies that they regard as necessary rather than those that might be merely convenient.

SOCIETY FOR ETHICS IN EGG DONATION AND SURROGACY, STANDARDS of ETHICAL CONDUCT for SEEDS MEMBER AGENCIES

"24.Agency Screening of Intended Parents

"a. An Agency shall not provide service to Intended Parents unless they demonstrate a need for surrogacy associated with a disease, condition or status characterized by:

"i. the failure to establish a pregnancy or to carry a pregnancy to live birth after regular, unprotected sexual intercourse;

"ii. a person’s inability to reproduce either as a single individual or with their partner without medical intervention; or

"iii. a licensed physician’s or mental health professional’s findings based on a patient’s medical, psychological, sexual, and reproductive history, age, physical findings and/or diagnostic testing. 

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The legal blog Above the Law has a post about this:

Should 'Social Surrogacy' Be Permitted? by Ellen Trachman

It says in part:

"What does the law say? States like Louisiana and Illinois specifically require documented medical need of intended parents in a surrogacy arrangement to comply with the state surrogacy law. Louisiana requires that a doctor “who has medically treated the intended mother … submits a signed affidavit certifying that in utero embryo transfer with a gestational carrier is medically necessary to assist in reproduction.”

"Utah previously required “medical evidence … show[ing] that the intended mother is unable to bear a child or is unable to do so without unreasonable risk.” But that provision was struck down by the State Supreme Court after determining it was unconstitutional as applied to a same-sex male couple and could not be read a in gender-neutral way. (The SEEDS standard is, by contrast, gender neutral.)

"Other states with surrogacy-specific statutes — like California, Washington, Colorado, New Jersey, and New York — are silent on medical need and, therefore, implicitly permit social surrogacy arrangements. And then those states with no surrogacy law, much of the country, permit social surrogacy by default.

"The SEEDS standard, of course, only applies to member agencies and does not prevent nonmember agencies from supporting social surrogacy arrangements or for those arrangements to occur independent of agencies."

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Stephanie Wang and I anticipated to some extent that this could be an issue in our paper

Roth, Alvin E. and Stephanie W. Wang, “Popular Repugnance Contrasts with Legal Bans on Controversial Markets,” Proceedings of the National Academy of Sciences (PNAS),  August 18, 2020 117 (33) 19792-19798.

We surveyed populations in the U.S. and several other countries on transactions that were legal in some of them and illegal in others. We presented vignettes, and asked if they should be legal.  Because we wanted to give surrogacy a good chance of being perceived as repugnant, we made clear in the surrogacy vignette that there was no medical necessity, it was sought for convenience:

"James and Erica are a married couple in [home country]. They want to have a child, but Erica does not want to become pregnant due to the demands of her career as a model. Maria is a married mother in the Philippines. Maria’s husband is out of work, and Maria has decided to become a surrogate mother to earn additional income. James and Erica hire Maria to carry and give birth to a child from James and Erica’s sperm and egg. James and Erica pay Maria a year’s average income in the Philippines, and everyone signs a contract making it clear that James and Erica are the child’s biological parents and will have custody after the child is born."

You can see in the paper (or in this 2020 blog post) that (even) under these circumstances, clear majorities favored making this kind of voluntary surrogacy legal, not only in the U.S. and Philippines where surrogacy is legal, but also in Spain and Germany where surrogacy is illegal.