Alexander D Peterson

Honors 220C, Paper 1

Surrogacy: Turning Infertility into a Social Good

Gestational surrogacy provides infertile couples the opportunity to raise children that share their
genetic material while also providing secure employment to the surrogate mother. In a country such as the
United States with the adequate resources and institutions in place to regulate and mediate contracted
surrogate labor, gestational surrogacy should be legalized and recognized as a social good that is
beneficial to all involved parties. Furthermore, specific federal legislation should be constructed that
builds off of existing Fair Labor Standards Act (FLSA) provisions and utilizes Washington State’s 2018
Uniform Parentage Act as a model.​1,2​ Through the maintenance of appropriate legal protections for
surrogate mothers and commissioning parents, government can not only continue to promote individual
autonomy in family-planning decisions but also ensure that surrogacy remains a safe and dignified
occupation.

Opponents of surrogacy typically argue one of three main points: 1) Surrogacy is often a rich
couple’s exploitation of a poor woman that reduces her body to a capital good to be rented, similar to
prostitution, 2) surrogacy treats babies as commodities to be purchased and trafficked, or 3) surrogacy
leads to dire legal circumstances for the surrogate, couple, and/or child if any party defies the contract
within the lengthy process of gestation.​3​ While some of these concerns are indeed valid, the typical
conclusion of these statements — that society should ban surrogacy — do little to nothing to address the
occurrence of these problems. According to Indiana University law professor John Lawrence Hill in “The
Case for Enforcement of the Surrogate Contract,” banning surrogacy fails to create a more beneficial
situation for three main reasons: the state would forego its ability to remedy the possible negative
consequences of surrogacy as it enters into the black market, there is little indication that banning
surrogacy adequately discourages the behavior, and holding surrogacy in the realm of the taboo exposes
surrogate mothers to possible blackmail and extortion due to social prejudices.​4​ Even from a practical
level, then, advocating for legalization with regulation seems the most effective way to keep surrogacy’s
possible negative consequences from occurring. With proper legal protections, political institutions to
enforce them, and social institutions to dignify surrogate work, all three main objections to surrogacy can
be addressed and abated.

In the United States, local, state, and federal labor laws exist to protect employees from abuse and
ensure fair treatment and compensation. These laws are broken down into numerous categories, ranging
from minimum wage and vacation leave to restricting child labor. The federal Fair Labor Standards Act
(FLSA) ought to be updated to include provisions specific to gestational surrogacy to reflect the unique
nature of surrogate labor and ensure that surrogate mothers in the United States are protected against
abuse and situations detrimental to health. Choosing to work as a surrogate mother is a major decision, as
pregnancy carries possible health risks, a uniquely extensive work shift, and possible psychological
stresses. In fact, a surrogate mother can be considered to be working 24/7 for the duration of her
pregnancy, since even when the surrogate is sleeping, her body is using its own resources to nourish and
stimulate the child inside of her. While the surrogate should thusly be entitled to the appropriate minimum
hourly wage in a given jurisdiction where the surrogate resides, new FLSA standards should stipulate that
mandatory overtime pay of 1.5 the normal rate shall not apply in cases of surrogacy; surrogate mothers
should be considered “exempt employees.” Many occupations are currently exempt from federal overtime
laws due to the long, sometimes idle nature of the work: movie theater workers, some nursing homes
caregivers, certain babysitting services, and more.​5​ Justification for exempt status here would also ensure
that baseline labor costs are not so inflated above current average surrogacy costs that parties would have
incentives to defy these labor laws. Under federal minimum wage and Washington minimum wage, one
can make a simple calculation and determine that the baseline cost of hiring a surrogate would be roughly
$46,284 and $73,416 respectively. According to West Coast Surrogacy Inc., the baseline pay for
surrogates is currently between $40,000 to $55,000 depending on the state, which is cleanly in the general
range dictated by a minimum wage.​6​ From this perspective, children are not treated as products to be
purchased since payment centers around the service the surrogate provides, legal fees, health care costs,
and other labor-related expenses. This treats surrogates much more as daycare and adoption providers to
be paid at regular intervals dictated by state law.​7

Additional federal stipulations should be modeled after Washington State’s 2018 Uniform
Parentage Act, which will take effect on January 1, 2019, and reverses Washington’s prior ban on
surrogacy.​2​ This law specifies that all parties must be at least 21 years of age, undergo mental health
evaluation, and maintain legal representation. In addition, surrogates must have given birth at least once
before and cannot enter into more than two successful surrogate agreements in their lifetimes.
Importantly, this law also stipulates that “ the woman acting as a surrogate [will] make all health and
welfare decisions regarding herself and her pregnancy . . . [including] the right of the woman . . . to
terminate her pregnancy.”​2​ Upon birth, parental rights are awarded to the intended parents in the contract.
This law also specifies the course of action if the contract is breached by either party — dispute of
parentage would be handled in family court, and the judge would also importantly factor in the welfare of
the child. Furthermore, these new laws should state that if a surrogate mother chooses to terminate the
pregnancy for reasons unrelated to medically necessary procedures at the judgment of a licensed
physician, commissioning parents would be entitled to sue for all wages paid and owed in labor court. If
the surrogate must abort the fetus to avoid serious harm to her health, however, commissioning parents
should not be entitled to recover prior paid wages due to the fact that it was the surrogate’s full intention
to fulfill the contract and she had potentially foregone other forms of labor in the interest of the fetus.
Clearly, this situation carries no benefit to the commissioning parents, emphasizing the importance of
health screenings and a record of a prior birth in these labor contracts.

Individual states should also pass legislation that aims to legitimize surrogacy as an occupation
within public opinion. Cases such as a Japanese man fathering over a dozen babies through surrogacy
raise concerns within the public about trafficking of children and the mass renting of female bodies by a
single wealthy man.​8​ In order to promote surrogacy as a noble occupation, states may require, for
example, that all parties reside within or near their state and that no individual may be a party in more
than two surrogacy contracts in their lifetimes. When surrogacy can be viewed as a natural aid for
traditional families with established legal frameworks, this may also increase social pressures for parties
to maintain their agreements. This is supported by a study into prostitution, generally viewed as an
undignified form of labor. One of the reasons why so much of violence and abuse in the practice of
prostitution fails to be formally reported and abusers fail to face punishments is that these sex workers
have few legal rights and are typically socially ostracized.​9​ By clarifying rights of surrogates on a federal
level and promoting this occupation as a valid form of work, one can expect cases of abuse and
exploitation to decrease as surrogates report negative incidents and exercise their right to sue. In addition,
if this legislation can be crafted to ensure surrogates are adequately paid for their labor, can make
decisions about their own well-being, and disputes are properly handled within existing institutions of
courts, no further regulatory body would be necessary. Contracts would have to adhere to these standards
to be notarized, and claims for damages can be mediated in court using these codified procedures.
Overall, surrogacy should be seen and legislated for what it is — an employer-employee relationship that
not only benefits both parties but also esteems new children as worthy of immense financial sacrifices and
legal protection.
 Citations

1​
United States Department of Labor. “Handy Reference Guide to the Fair Labor Standards Act.”
Updated September, 2016 from https://www.dol.gov/whd/regs/compliance/hrg.htm

2​
Uniform Parentage Act 2018 ​(WA) Title 19,26 RCW (US). Retrieved from http://Lawfilesext.
leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Passed%20Legislature/6037-S.PL.pdf

​ Chaime, J. and Barry Mirkin. “Surrogacy: Human Right or Reproductive Exploitation?.” Yale
3​

Global Online. October, 2014 from https://yaleglobal.yale.edu/content/

Surrogacy-human-right-or-reproductive-exploitation

4​
Hill, J. L. “The Case for Enforcement of the Surrogate Contract.” ​Politics and the Life Sciences,​
Vol. 8, No. 2. February, 1990 from https://www.jstor.org/stable/
4235682?read-now=1&googleloggedin=true&seq=1#metadata_info_tab_contents

5​
United States Department of Labor. “Field Operations Handbook: Chapter 25.” August, 2016
from https://www.dol.gov/whd/foh/

6​
“Surrogate Mother Costs.” West Coast Currogacy, Inc. 2018 from https://
www.westcoastsurrogacy.com/surrogate-program-for-intended-parents/surrogate-mother
-cost

7​
United States Department of Labor. “State Payday Requirements.” January, 2018
from https://www.dol.gov/whd/state/payday.htm

8​
Ware, J. “Man accused of fathering 12 surrogate babies in Thailand.” BioNews. August, 2014
from https://www.bionews.org.uk/page_94721

9​
Mahapatra, B. et al. “Non-Disclosure of Violence among Female Sex Workers: Evidence from
a Large Scale Cross-Sectional Survey in India.” ​Public Library of Science (PLOS) One.
May, 2014 from https://journals.plos.org/plosone/article?id=10.1371/
journal.pone.0098321
 -surrogate given rights to medical chouices.
-dangerous labor is part of life. Fishermen.

Gestational surrogacy in the

-tighter than washington, so that the chinese dude can’t buy 12 kids.
-baby is surrogate’s until birth, giving her rights to terminate

-Labor laws based on washington state law, must be paid at least minimum wage. Surrogate
mother must be considered

-Surrogacy should be legal in the United States on a Federal level, but only open to surrogates
and commissioners residing in the United States for at least 2 years.

-Constitution gives feds power to regulate interstate commerce.

-Surrogacy Regulatory Commission, probs not necessary.

https://www.lni.wa.gov/WorkplaceRights/files/policies/esa5.pdf
https://www.jstor.org/stable/4235682?read-now=1&googleloggedin=true&seq=5#metadata_info
_tab_contents