Whether it is the high-profile media circuit surrounding the second-newest member of the Kardashian crew, Chicago West, or the expanding need for alternative childbearing measures—with later marriages, women entering more professional tracks, and growing legal acceptance of same-sex couples, ‘Assisted Reproductive Technology’ (AKA surrogacy) is on the rise. With that comes uncomfortable confrontations with outdated laws across the globe and a quandary about which system is most acceptable—often complicated when surrogacy happens across borders.

The legality of surrogacy depends on a dichotomous distinction between commercial and non-commercial (also called altruistic) surrogacy. In places with the most restrictive laws, such as Spain and France, no type of surrogacy is permitted; however, countries can choose to allow non-commercial, but reject commercial. Their names give their differences away—with commercial allowing a fee for the service of surrogacy, and altruistic/non-commercial requiring someone to carry the child at no profit, with allowances only for medical bills. There exists a third type of jurisdiction, wherein the question has not been reached—leaving people who seek the service in a legal gray area (including many states in the US). Western Australia (WA) recently opened discussions to reevaluate their surrogacy laws. At present, WA does not allow commercial or non-commercial, but the latter is under review—with increased pressure from surrounding jurisdictions’ contrasting laws, and as a response to same-sex couples presently facing unequal burdens to conceive: having to leave the country (or at least the state when they can find an altruistic carrier in another jurisdiction) to bear a child.

Whereas some countries have not yet legalized any type of surrogacy, Ireland has legislation pending for a type of surrogacy using gametes and embryos from the dead, leading to questions of consent, autonomy, and the morality and medical feasibility of using “posthumous sperm.” Their law, if passed, would allow sex cell retrieval, permitted under three conditions, all involving a surviving spouse of a deceased partner—and, as the legislation interestingly terms it, this is in order to allow a spouse to “continue a parental project.” If using the embryo of a deceased person, that embryo must have been created during the lifetime of the deceased person, but the use of posthumous sperm needs either consent of the deceased (during his lifetime) or simply that the surviving person requesting the sperm is the spouse. For posthumously-retrieved embryos, the surviving spouse would need to undertake an able-bodied woman to carry the fertilized embryo, but, despite the seemingly very progressive perspective the bill takes on assisted reproductive technology laws, this must only be done non-commercially. Further, what the bill gains in allowing extreme hands-off decision making—even regarding a deceased person—it loses by requiring a one year grieving and counseling period before any decision can be made.

There is an interesting balance to strike: too laissez faire a system can be seen as giving a lot of reproductive autonomy, but in countries where laws allow exploitation, can foster extreme subjugation of women—endangering their health and well-being. This has led to a flurry of legislation that bans foreign nationals from entering certain countries with unregulated or permissive surrogacy, as many women who were destitute could make up to ten years’ worth of wages, but be monetarily coerced to subjecting themselves to medical endangerment for monetary comfort. India, Nepal, and Thaliand, for example, have cracked down on international surrogacy to protect their citizens from abuses.

In the US, a majority of the states are left unregulated, but we have the largest incidence of commercial allowance in the world (called “Handmaid’s tale”-esque, by some). For New Jersey, regulation of surrogacy is presently on the table—with both sides of the debate echoing many of the pros and cons alluded to above. The bill, originally introduced in 2012, has been vetoed twice, but now faces a vote in light of a new political body. If passed, it would allow non-commercial surrogacy, impose age requirements on the surrogate, require that she pass mental and physical health exams and have given birth, and require her to secure an attorney. The naysayers refer to a 1980s case of Baby M—conceived in the time of insemination of the carrier using the carrier’s own egg,—wherein the gestational carrier of Baby M claimed maternal rights to keep the child. This is an outlier, however, as now contracts are required to be executed prior to fertilization, and the embryo implanted is from the genetic (non-carrier) mother. Subjugation of the poor is a legitimate concern, but in a market that will inevitably exist—causing people to go abroad or to other states to conceive a child via surrogacy—it is a better solution to regulate and create a legal framework, than to allow legal gray areas to create loopholes or endanger women providing parenthood.

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