January , 2002
OPTS is a national, not-for-profit, advocacy organization which supports
infertile couples in building families through surrogate parenting and other
assisted reproductive technologies. Our members include parents, prospective
parents, surrogates and many professionals (physicians, attorneys, psychologists
and service providers) working in the fields of infertility, adoption and
surrogacy both across the U.S. as well as abroad. Established in 1988, OPTS has
no paid lobbyist or any financial interest in lawmaking either for or against
surrogate parenting in your home state.
It is estimated that one in every six couples is infertile. For some of these
couples, surrogacy may represent their only option for a biologically-related
child. Perhaps you personally know someone who has struggled with infertility. A
family member, friend or constituent, perhaps. You might be surprised to learn
that millions throughout the country are affected by infertility, people of all
nationalities, religions and political affiliations..
We appreciate your interest in developing public policy on surrogacy. On behalf
of your constituents, however, we hope you will favor legislation that supports
their efforts to build their families through the option. We hope you'll look at
previous proposals consistent with recommendations of the Model Surrogacy Act, a
1988 proposal by the American Bar Association's Section of Family Law Adoption
and Surrogacy Committee. We hope you will also review public policy
recommendations on surrogacy by the well-respected National Conference of
Commissioners on Uniform State Laws, a prestigious lawmakers' advisory group
working for uniform state laws (please see more on them on our website at
Practical legislative initiatives have contained one or more of the following
1. Recognition of contracts that protect all parties in an agreement.
2. Medical, psychological and legal services for the commissioning couple and
surrogate mother, paid for by the intended parents.
3. Provisions for health and/or life insurance for the surrogate to be paid for
by the commissioning couple.
4. Fair compensation for the surrogate's time, effort reproductive services and
risk of pregnancy and delivery. Why not just allow "medical and ancillary" or
"living" expenses in lieu of a fee? Contrary to popular impression, most
surrogates have a job or other means of support and do not see surrogacy as a
way to make ends meet. But they do expect to be paid for their efforts, risk and
time. The notion that surrogates should provide services for "free" is a slap in
the face to the value of their work as surrogates and women in general.
Additionally, unpaid surrogacy puts too much pressure on the intended parents'
family or friends to help them out. Unpaid surrogacy doesn't discourage
commercialism or exploitation. In fact, it promotes "deal-making" between
prospective parents and surrogates under the table. time, however, being a
surrogate isn't a good choice for poor women who can't put food on the table or
who are disadvantaged. Most reputable services do not accept women on welfare.
5. Support for clinics and agencies that provide services and guidance to
intended parents and surrogates. Laws against providers cut off access to
information, guidance and needed services. Such laws expose parties in an
agreement to the extra risks associated with "do it yourself" arrangements.
6. Recognition of the intended parents as the legal parents before or at birth
of the child. In some states currently, the birthmother may be forced to take
the legal and financial responsibility that goes with having her name listed as
mother on the birth-certificate. The biologically-related parents may then be
forced to 'adopt" their own related child. Custody disputes may occur when the
baby's intended parents aren't recognized right at birth. While several states
have recognized and/or legalized surrogacy, there is still little positive
legislation on the books. We hope that you, as a lawmaker, will support
legislation which supports choice in family-building for your constituents.
Is surrogacy like adoption? In adoption, an already-pregnant woman gives up a
baby which will be adopted and raised by another family. In surrogacy, the
intent is for the child to be raised by a pre-selected set of parents. These
prospective parents are selected by the surrogate before a pregnancy occurs.
This can be done with consideration, informed consent and under non trauma-tic
conditions. In almost all surrogacy births, the child is biologically related to
one or both of the intended parents.
Does surrogacy exploit poor women? Opponents of reproductive choice (even those
calling themselves "choice" organizations) may claim surrogates are poor,
helpless women who are being exploited or who aren't capable of making
reproductive decisions for themselves. As a point of information, almost all
surrogates are intelligent women with at least a high school diploma. They
typically also have a job and/or working spouse. Welfare or uneducated women
seldom pass screening. Opponents of choice may tell you they care about
surrogates or have "constitutional" concerns in asking you to enact legislation
cutting off choices, options and parental rights of infertile couples in your
district. These lobbyists couldn't care less about the welfare of surrogates.
Their goal is to build political power for themselves via lobbying for laws that
interfere with the private reproductive decisions of your constituents. We hope
you won't be persuaded by this type of lobbying.
Is surrogacy the same as baby-selling? Baby-selling occurs when a "deal" for
cash is made between a birthmother and prospective parents, either directly or
through a third party for cash under the table in exchange for a baby. Modern
surrogacy agreements establish exactly what monies can be paid and on what
time-table. In some states, court approval can be obtained for agreements in
advance. And while there is case law involving the prosecution of baby brokers
involved in adoption placement, your law clerk can verify that this is not the
case with surrogacy.
What's the failure rate with surrogacy agreements? Aren't they all Baby M's?
Contrary to what lobbyists will tell you and sensationalized media features,
less than one-quarter of one percent of surrogate mothers have ever changed
their minds about placement or had an issue with an written agreement. Less than
one quarter of one percent! This fact, also, can be verified by your law clerk.
Of an estimated 20,000 births via surrogacy since 1976, over 99% have worked out
satisfactorily for all parties. This fact is not often acknowledged by media.
Should agreements be recognized? Written agreements spell out everyone's
expectations and responsibilities. They are designed to promote cooperation and
protect all parties from exploitation, particularly children. Courts and
legislatures need only consider the outcome of the Baby M case as an example of
why contracts need to be honored.
Do we need a surrogacy service in our home state? Many infertile couples must
"do-it-them-selves" on the internet or go underground in states with
overly-restrictive legislation. Or travel long distances for surrogacy services
available legally elsewhere. We hope you will support recognition of surrogacy
in your home state, so that infertile constituents can get the help they need
right at home.
Should we create a government panel to determine if technologies such as IVF,
surrogacy, sperm-donation, egg donation, embryo adoption, embryo research, etc.
should be banned? Lobbyists against choice may urge you to support a ban on
surrogacy or other reproductive technology. Or ask for a "study" or bio-ethics
type commission (paid for with tax dollars) designed to conclude that surrogacy
and other reproductive options should be severely restricted or outlawed. We
hope you will be wary of lobbying designed to take away the family-building
options of your constituents and support legislation that supports their right
to autonomy, privacy and choice in family-building.
The volume of calls and letters OPTS receives each day suggests that infertility
is on the rise. On behalf of the callers from your own state and district, we
thank you for any support you will give them. If more information from OPTS is
desired, please give us a call.
Organization of Parents Through Surrogacy