The Minnesota Gestational Carrier Act would create the state's first legal framework for guiding prospective parents and carriers through the delicate thicket that comes with having a third party birth a couple's baby.
Surrogacy is typically an option at the end of a long, difficult road for couples who have tried other means to have a baby who carries genetic material from at least one partner. In Minnesota, it can be even more daunting because a lack of uniform laws means that counties and even individual judges within counties can lay down their own interpretations of what's necessary. In some instances, parents have been required to formally adopt their own biological children because a judge has considered the gestational carrier to be the legal mother.
The remedy for that is clear state statutes that would provide some basic protections while avoiding too heavy an intrusion into an intensely personal decision.
The act proposed would regulate the industry by upholding many of the best practices already employed in most contractual agreements. Most importantly, it would clarify parentage. The baby resulting from surrogacy belongs to the intended parents, not to the woman who carried and birthed the baby for them. That is already the law in a number of states and is a reasonable step for Minnesota to take as it sorts out the ever-shifting frontiers of prenatal science.
It should not be further complicated by the politics of those with certain religious or moral agendas. Under the guise of protecting women, the Minnesota Catholic Conference and others would severely limit compensation for carriers, and support other needless hurdles, such as criminal background checks for prospective parents. The Catholic Conference in particular has fomented the dark notion that Minnesota is set to become some epicenter for a global surrogacy industry in which "breeders" might be "locked away for months" while they "gestate the product for consumption by wealthy consumers." Those are remarkable assertions and require some proof that so far has been lacking.
The Conference has also said that "a child has a natural right to be conceived in the womb [of his mother] and raised in marriage." That is not a view necessarily shared by society at large. Major medical groups — including the Minnesota Medical Association, the American Society for Reproductive Medicine and the American Congress of Obstetricians and Gynecologists — have endorsed gestational surrogacy as a viable reproductive option, and many couples have used it to create children who are deeply wanted.
There also is little evidence in Minnesota that women are getting rich off being gestational carriers. Pregnancy involves not only a measure of risk, but frequent discomforts that can range from everyday irritations to those that make it impossible to work. As Sen. Sandy Pappas, DFL-St. Paul, a cosponsor of the act, notes: "Everyone else is being compensated — the lawyers, the clinic, doctors. Why shouldn't the person carrying the child be compensated?"
It would be a shame to allow a maddening patchwork of competing county practices and judicial interpretations to continue because the Legislature cannot find common ground on an issue that badly needs legal clarity. Legislators should work together on behalf of couples who want families as well as for the women who are generous enough to help make that happen.
