January 29,2014

by Diana Reese

Using a surrogate mother — or “gestational carrier” — may be the only hope for some couples who want to experience parenthood and the joy of creating a family, which would seem to be at the heart of conservative values.

So it’s tough to understand why a staunchly pro-life state senator in Kansas has sponsored a bill to turn surrogate mothers — and the couples who seek their help in having children — into criminals. Yet that’s what Mary Pilcher-Cook, a Republican from Shawnee, has done with Senate Bill 302.

If passed, it would make all agreements, whether oral or in writing, with surrogate mothers null and void. Anyone involved in hiring, or working as, a surrogate could be charged with a misdemeanor, punishable with up to a $10,000 fine and a year in the county jail.

Pilcher-Cook gained notoriety last week on the 41st anniversary of Roe v. Wade by having ultrasounds performed live in front of members of the Kansas Senate’s Committee on Public Health and Welfare, which she chairs. “Because the health committee is very concerned about the health of unborn children and mothers, I thought it would be a great way to give committee members a science education on life within the womb,” she told the Wichita Eagle.

Now she says she wants to start a conversation about surrogacy out of concern for the creation of “a child that you know is purposely not going to have either a biological mother, biological father or both.”

A hearing Monday drew a standing-room only crowd, with emotional arguments presented for both sides. The most creative? Dr. David Grainger, a physician in reproductive medicine, who said, “This bill would have criminalized the most important surrogacy pregnancy this world has ever seen. Mary had a verbal contract with Gabriel. She was carrying a pregnancy that was not her husband’s, and she gave that pregnancy back to God after he was born.”

The bill doesn’t stand much chance of passing, especially after Senate President Susan Wagle, a Republican from Wichita, said she didn’t support it. “Criminalizing surrogate mothers is not a priority of the Legislature,” she said.

So why even introduce it? Pilcher-Cook may be one of the most vocal opponents of abortion in the Kansas legislature. Some contracts with gestational carriers do call for the option of ending the pregnancy if the fetus is found to have a serious defect. ”Pro-life people see that language and lose sight of the whole arrangement,” said Melissa Brisman, a reproductive lawyer in New Jersey and the owner of Reproductive Possibilities. She also is the mother of twin boys and a daughter born with the help of a gestational carrier. 

It may be the fate of the frozen embryos created during IVF, or in vitro fertilization, that bothers Pilcher-Cook. During last year’s legislative session in Kansas, she said she believed human life began with the fertilization of an egg — even if kept in a freezer because the “value of a human being doesn’t depend on their location.”

There’s also speculation that Pilcher-Cook’s opposition to gestational carriers stems from the use of surrogates to make parenthood possible for gay couples. Is that a reason to deny “the woman who’s lost her uterus due to a car accident or cancer or rape, or has a heart condition, diabetes or anything else that could impact her ability to carry a child?” Brisman asked. 

Kansas would not be the first to outlaw surrogate mothers. Pilcher-Cook based her proposed bill on the laws in Washington D.C. — some of the most restrictive in the country. That’s not a problem for residents, though, said Brisman. Couples simply cross over to Maryland where the legal system is friendlier toward surrogacy.

“If you live in the middle of Kansas, though, you’re trapped,” she said.

Brisman has become involved in drafting legislation to regulate surrogacy, although the Child Parent Security Act, proposed for New York, has failed to leave committee for two years in a row. (It would also protect the relationship of children and parents in situations other than surrogacy.) New York, Michigan, Washington and Louisiana are the states with the most restrictive laws, she said.

The issue of surrogate motherhood is a complicated one, and some sort of regulation is needed to protect all parties involved.

Not everyone realizes there are actually two types of surrogacy, each with its own set of issues. “Gestational” uses the couple’s own egg and sperm, or donor egg and sperm, to create an embryo through IVF that’s then implanted in the womb of the surrogate. A “traditional” surrogate uses her own egg and is impregnated with sperm from the intended father through intrauterine insemination.

Some opponents of gestational carriers, especially those who do it for profit, believe the practice treats women as human incubators. Is it simply renting a woman’s womb for nine months? Why isn’t it considered demeaning for men to donate their sperm so couples can conceive?

Or could serving as a surrogate be the greatest gift one human being can give to another?