For the Surrogacy Revolution, Thank Free Markets and Voluntary Exchange

Reprinted from the Chicago Tribune in the Duluth News Tribune (talk about the heartland): Gay men increasingly turn to surrogates to have babies.

Yes, they are, and it represents a sea change in the lives of gay men who are, increasingly, married with children.

The surrogacy revolution is premised on free enterprise and the voluntary exchange of a market economy, made possible when government and its army of bureaucrat regulators get out of the way.

Government’s role here is limited to enforcing contracts, when necessary, as adjudicated by the courts.

20 Comments for “For the Surrogacy Revolution, Thank Free Markets and Voluntary Exchange”

  1. posted by Throbert McGee on

    I’m not sure if this is anything to applaud, but then again, I don’t know the details of the laws involved. But asking a woman to surrender rights to a baby that she’s carried inside her for nine months, in return for cash, seems like it’s laying the ground for future lawsuits.

    Reply
    • posted by Lori Heine on

      I have to say that I agree. Furthermore, babies are not commodities; they are human beings. This is problematic in more ways than one.

      Nobody loves the free market more than I do. But I can’t help but wonder if it’s a good idea to start viewing human beings as products to be bought and sold. We did that for two hundred years in this country, and had to fight a Civil War to get rid of it.

      Reply
    • posted by JohnInCA on

      Now for the hat-trick: come up with a legal/moral argument against surrogacy that doesn’t take out adoption as collateral damage.

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    • posted by Jorge on

      I think that about nails it.

      Now for the hat-trick: come up with a legal/moral argument against surrogacy that doesn’t take out adoption as collateral damage.

      That’s not difficult at all. I think the collateral damage is dealt elsewhere.

      Surrogacy isn’t just about buying and selling people and valuing them at different rates, it’s about buying and selling the creation of people.

      When there’s excess inventory of unwanted children, they end up in agencies with damaged psyches, but at least they’re alive. With artificial conception, including surrogacy, when there’s excess inventory of artificially inseminated eggs, they end up frozen indefinitely or destroyed outright. Under Catholic reasoning this is not only a grave harm to lives and souls, but it is part of a slippery slope of devaluing life itself.

      As has been observed elsewhere, with gay adoption gays are relieving a problem. Well, with gay surrogacy gays are contributing to an even worse problem.

      And I just convinced myself to avoid surrogacy. Lovely.

      surrogacy is not entirely the unregulated Wild West that you imagine.

      I think you just proved that it is…

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      • posted by JohnInCA on

        Ah, so you went the other way: you have a moral issue with *anyone* getting pregnant intentionally.

        Which begs the question: why focus on gay people? Hereto couples use fertility treatments (of all kinds) far more then gay people do. So if it’s evil for gay folks to use tech to get pregnant, isn’t it similarly evil for straight folks to use the same exact things? You gotta remember, there isn’t a technology or technique that gay folk have used (or theorized) to get pregnant that want invented for straight people. Even womb transplants were proposed as a way to help infertile women.

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        • posted by Jorge on

          Ah, so you went the other way: you have a moral issue with *anyone* getting pregnant intentionally.

          That was cute. I enjoyed that.

          I think I’ll write that as a satirical observation of Catholicism and post it at work.

          Which begs the question: why focus on gay people?

          That’s what I was thinking about when I wrote I think the collateral damage will be but the idea fled my mind before I could get it out. The whole “straights damaged marriage and gay have to pay for it” deal.

          Reply
    • posted by TJ on

      wow. This was an odd post, even for Stevey.

      Reply
      • posted by Tom H. on

        Why odd? The surrogacy revolution isn’t an appropriate topic for a blog on gay issues titled CultureWatch? The role of markets and the state aren’t part of that discussion?

        Reply
  2. posted by Tom Scharbach on

    The surrogacy revolution is premised on free enterprise and the voluntary exchange of a market economy, made possible when government and its army of bureaucrat regulators get out of the way. Government’s role here is limited to enforcing contracts, when necessary, as adjudicated by the courts.

    Not to rain on your parade, Stephen, but (a) the article (although reprinted in the Duluth News Tribune, a subsidiary paper of the Tribune Media Company) is a reprint of a Chicago Tribune article about a Chicago couple (talk about the heartland), and (b) surrogacy is not entirely the unregulated Wild West that you imagine.

    In Illinois, a relatively liberal state, surrogacy rights are a creature of law regulated by the Illinois Department of Public Health, albeit regulated in order to facilitate surrogacy. Illinois and a handful of other states that facilitate surrogacy are the exception rather than the rule.

    Across the country, surrogacy is banned in Arizona and the District of Columbia, voided and penalized in Michigan and New York, voided in Indiana, Kentucky, Louisiana and Nebraska, prohibited in some but not all cases in North Dakota and Washington, allowed but regulated by the state in Arkansas, Florida, Illinois, Nevada, New Hampshire, Texas, Utah and Virginia. The laws in a number of the states allowing but regulating surrogacy offer support only for married heterosexual couples, but that aspect of regulation will almost certainly be held unconstitutional if a case makes it to SCOTUS before a Scalia-clone majority is in place.

    The other states do not have specific laws banning, voiding or regulating surrogacy.

    In all but ten of those states, the status of surrogacy and the parental status are governed by court decisions interpreting adoption, parental rights and contract law. Court decisions in some states facilitate surrogacy and surrogacy contracts, court decisions in others hinder surrogacy and look askance at surrogacy contracts, and court decisions in a few states refuse to enforce surrogacy contracts for a variety of reasons.

    In the ten states with neither statutory or published court decisions (Colorado, Georgia, Iowa, Maine, Minnesota, Missouri, Mississippi, Montana, Rhode Island and South Dakota) surrogacy status is a crap shoot at this point. Nobody knows what the law is, and couples enter into surrogacy arrangements at their own risk with no certainty of outcome.

    In short, surrogacy is not so much an example of a free market Nirvana as it is an example of a legal mish-mash of inconsistent laws, regulations and court decisions. Couples considering surrogacy should retain an experienced surrogacy lawyer before so much as farting.

    I would be remiss to ignore the fact that the culture wars have invaded the surrogacy arena. The New Jersey Gestational Carrier Agreement Act, modeled on the would have authorized gestational carrier agreements under New Jersey law, providing a legal framework for gestational surrogacy in New Jersey, was vetoed by Governor Christie in 2015 on the day before his announced his candidacy for President.

    I don’t join Stephen and other free market advocates in applauding the ugly mess that couples seeking surrogacy arrangements now face in the United States.

    In my view, we would be much better off if the states adopted relatively uniform laws facilitating surrogacy, such as the Uniform Law Commission’s proposed “Uniform Parentage Act” or the ABA’s proposed “Model Surrogacy Act”.

    Reply
    • posted by Tom Scharbach on

      A couple of quick corrections:

      (1) California and Delaware should be included in the list of “allowed but regulated” states.

      (2) The following sentence should include the words in bold: “The New Jersey Gestational Carrier Agreement Act, modeled on the Uniform Parentage Act would have authorized gestational carrier agreements under New Jersey law …”

      Reply
    • posted by Tom H. on

      In your rush to condemn everything Stephen says, you miss the point of his heartland reference. He said it was originally from the Chicago Tribune, but was reprinted in the “heartland” Duluth paper. That Duluth chose to reprint it was the small but valid point, which you chose to misconstrue.

      Reply
  3. posted by Tom Scharbach on

    Furthermore, babies are not commodities; they are human beings. This is problematic in more ways than one.

    I agree. Surrogacy presents serious ethical issues in my opinion.

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    • posted by Tom Scharbach on

      I should make clear that I support uniform laws and regulations facilitating surrogacy. As is the case with abortion, the ethical/moral decisions should be individual decisions, not government-imposed.

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    • posted by JohnInCA on

      Two decide to have a baby. Is that problematic?

      Two people decide to have a baby, but go to a fertility clinic to get it done. Is that problematic?

      Two people decide to have a baby, but go to a fertility clinic and use genetic material from a donor. Is that problematic?

      Two people decide to have a child and go to an adoption agency and adopt an older child? Is that problematic?

      Two people decide to have a child and go to an adoption agency and adopt and infant. Is that problematic?

      Two people decide to have a child, and are put in touch with a pregnant woman who doesn’t want the child, and they all agree for the couple to adopt. It’s problematic?

      Two people decide to have a child, and are put in touch with a woman happy to have a drunken night with them to get pregnant. Is that problematic?

      Two people decide to have a child, and are put in touch with a woman and her turkey baster. Is that problematic?

      Two people decide to have a child, and are put in touch with a woman happy to go to a fertility clinic with them to get pregnant. Is that problematic?

      And remember, money/services can be exchanged in any of theses scenarios (maybe the couple in the first scenario had ‘children’ in their pre-nup), but they don’t have to be (I’m share there is at least one over-worked charity fertility clinic out there), so if that’s your concern, your concern isn’t with the “what”, it’s with the “how”.

      Reply
    • posted by Tom Scharbach on

      And remember, money/services can be exchanged in any of theses scenarios (maybe the couple in the first scenario had ‘children’ in their pre-nup), but they don’t have to be (I’m share there is at least one over-worked charity fertility clinic out there), so if that’s your concern, your concern isn’t with the “what”, it’s with the “how”.

      Exactly.

      As I see things, the moral/ethical issues arise in the context of commercial surrogacy, rather that in the context of altruistic surrogacy. I suspect that concern about the moral/ethical issues presented by commercial surrogacy is the reason that many countries (e.g. Australia, Canada, New Zealand, United Kingdom) and states in the US allow and/or facilitate altruistic surrogacy, while prohibiting commercial surrogacy.

      We can discuss those issues, I suppose, but it does not seem to me to be productive. Our laws, in my opinion, should facilitate surrogacy and leave to the individuals involved to make the ethical/moral decisions presented by surrogacy, commercial and/or altruistic.

      It seems to me that in a legal context, surrogacy is similar to abortion. Religious, moral and ethical teaching is all over the map on both issues, and it seems to me that the ethical/moral decisions should be individual decisions, not government-imposed.

      The law on surrogacy in the United States is a mess, a quagmire, and I strongly support uniform laws across the states, modeled on the Uniform Law Commission’s proposed “Uniform Parentage Act” or the ABA’s proposed “Model Surrogacy Act”.

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      • posted by JohnInCA on

        So my putting $100 into a college fund (for one of her other children) every month for the next 18 years is fine, but me just paying her the same amount directly is suddenly problematic?

        “Altruism” as a condition for something to be “moral” is a very poor standard, especially when one person’s “I was just being generous” is another’s bribe.

        And it’s not pragmatic either. It’s like the gedunk at work. It’s not *really* a $1 donation for that candy bar, and we all know it.

        Reply
      • posted by Tom Scharbach on

        So my putting $100 into a college fund (for one of her other children) every month for the next 18 years is fine, but me just paying her the same amount directly is suddenly problematic?

        JohninCA, you seem determined to engage me in this argument, but I can’t fathom what we would argue about, when you get right down to it.

        You seem to be arguing that commercial surrogacy should be allowed by the law, and I am making the argument as well. So what’s to argue?

        You seem determined to have an argument with me about whether my reasons for finding surrogacy, and commercial surrogacy in particular, problematic from a religious/moral/ethical standpoint, are supported by criteria acceptable to you. I suppose we could venture down that road but I don’t understand how it would be productive.

        You may (or may not) remember that Jorge and I got into a lengthy discussion about the morality of abortion in a thread several years ago. We discussed the question from a religious/moral/ethical standpoint, and it was interesting.

        It was also irrelevant to the legal question, because while it turned out that I think that abortion is morally wrong in almost all cases, I believe that the individuals involved, rather than the government or the law, should make the abortion decision based on their own religious/moral/ethical conscience. I think the same thing about surrogacy, as I’ve made as clear as a goat’s ass about three times in this thread.

        I suppose we could go through the long exercise of discussing surrogacy from a religious/moral/ethical standpoint, and you might get an education in modern rabbinical thinking on the subject (as well as the Talmudic underpinnings of the various positions) as we have that discussion (and I might get an education in modern thinking from whatever religious/moral/ethical background that influences your position), but I don’t know what purpose it would serve.

        “Altruism” as a condition for something to be “moral” is a very poor standard, especially when one person’s “I was just being generous” is another’s bribe.

        The term “altruistic surrogacy” as used in the literature surrounding surrogacy is not coexistent with the term “altruism”, and the term “altruistic” is not coexistent with the term “moral”, either. Enough said.

        More to the point, I discuss surrogacy with a background. I know something about surrogacy because the question came up in my family some years ago. I took the time to dig into the moral/ethical considerations from my religious standpoint, and I came to the conclusion that surrogacy posed moral/ethical issues for me. If that’s not the case for you, so be it. It is possible for people to differ about moral/ethical issues.

        Reply
        • posted by JohnInCA on

          I asked you questions about your (in my opinion) twisted sense of ethics/morality. My reason is to understand your twisted sense of ethics better.

          Sure, of you ever explain yourself enough I might start “arguing” in earnest, but so far I’m still in the “figuring out your definitions” phase of things.

          That is to say, yes, I was trying to engage you in a discussion of ethics and morality, because (A) they are important to me and I seek to understand other people’s perspective, especially when I think they are flawed, and (B) such discussions are interesting on their own merits.

          So yeah, there was a reason I asked pointed moral questions while mostly ignoring the legal ones.

          Reply
        • posted by Tom Scharbach on

          I asked you questions about your (in my opinion) twisted sense of ethics/morality. My reason is to understand your twisted sense of ethics better.

          Well, if we can do this offline — a private e-mail exchange, for example — I’d be willing to engage the questions. If you send me a private message through Facebook, I’ll send you my e-mail address and other contact information.

          Understand, though, that my “twisted sense of ethics” is self-referential in this case, and is not to be confused with what I consider “moral” or “immoral”.

          I will be describing what I believe conforms to Halakah with respect to surrogacy, and explaining why I believe as I do, without describing surrogacy as either moral or immoral. The question is not morality (there is nothing immoral about mixing meat and dairy, for example) but instead what is (and what is not) forbidden.

          So to take this a bit further, the question is not what is moral, or what should govern the behavior of others, but instead what should govern my behavior within my specific religious tradition, as I understand and relate to that tradition. In other words, the question is “How should I act?” rather than “What is moral?” or “What is right?” or “What is ethical?” or “How should others act?”

          I have been careful to describe surrogacy as “problematic” from an ethical/religious/moral standpoint, and said that surrogacy “presents serious ethical issues in my opinion”, and so on. I have not, by doing so, passed judgment on surrogacy. The fact that surrogacy in my view is “problematic” and “presents serious ethical issues” does not mean that I have reached negative conclusions about surrogacy, does not mean that I think that the ethical problems presented are insurmountable, and does not in any sense mean that I disapprove of surrogacy in many/most situations.

          My view, in fact, is that if the ethical issues presented by surrogacy are dealt with in a way that is ethical and overcomes the obstacles, taking into consideration the difficulties presented and different approaches to dealing with them, surrogacy can and often does conform to my understanding of Halakah.

          So if you want to go further with this, I’m willing to do so, offline, as time permits.

          By the way, what is with your conclusion about my “twisted sense of ethics” when you have no idea what my conclusions about surrogacy are? All I’ve done is said that surrogacy raises religious/moral/ethical issues. If that — noting that a technology raises issues — is “twisted” in and of itself, that conclusion is interesting, to say the least. But to each his own, John. I’d suggest that you calm down and get off the bandwagon.

          Reply
  4. posted by Lori Heine on

    “As I see things, the moral/ethical issues arise in the context of commercial surrogacy, rather that in the context of altruistic surrogacy.”

    That’s a good way of putting it. An agreement between consenting adults about how a child should be raised is a far different matter than selling babies. The post makes it sound as if as long as it’s done via the “free market,” anything should be okay and it’s all good.

    Adoption should not be conflated with surrogacy. They are two entirely different matters. There are always more kids in need of permanent homes than there are people to adopt them. The realization of that is a large part of the reason more people are becoming comfortable with adoptions by same-sex couples.

    Reply

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