Citizenship, Surrogacy and the Power of ART

A recent LA Times article by Alene Tchekmedyian explores a complicated case involving birthright citizenship, surrogacy and same-sex marriage. Briefly, a California man, Andrew Banks, married an Israeli man, Elad Dvash, in 2010. At the time, same-sex marriage was not legal in the US leaving Elad unable to acquire a green card for residency (via the marriage) so the couple moved to Canada where Andrew has dual citizenship. While in Canada, the couple conceived twin boys, Aiden and Ethan, using assisted reproduction technology (ART) whereby eggs from an anonymous donor were fertilized by sperm from Elad and Andrew and then implanted within the womb of a female surrogate and carried to term. When the US Supreme Court struck down the federal law that denied benefits to legally married gay couples in 2013, Elad applied for and was granted his greed card. The present controversy occurred when Andrew and Elad applied for US passports for the twins. US State Department officials required detailed explanation of the boys’ conception, eventually requiring DNA tests which confirmed Aiden to be the biological son of Andrew and Ethan to be the biological son of Elad. Aiden was granted a US passport while Ethan was denied. The family has since traveled to the US (Elad with his green card and Ethan with his Canadian passport and temporary 6 month visa) where they are now suing the State Department for Ethan’s US birthright citizenship. They are arguing that the current applicable statute places them wrongly in the category of children born out of wedlock rather than recognizing their marriage, thus discriminating against them as a binational LGBTQ couple.

Birthright citizenship is a complicated legal arena and I am no lawyer. The US is even more complicated because we allow birthright citizenship to be conferred jus soli (right of the soil) in addition to jus sanguinis (right of blood). The twins were not born in the US so establishing “bloodline” is needed. The law specifies conditions where one parent is a US citizen and one is not a US citizen, and there is further differentiation depending on whether the children of the US citizen were born in or out of wedlock. They also vary depending on whether the US citizen is male or female, with the law more lenient (easier to acquire citizenship) for the child of a woman than of a man.

While the legal challenge here will almost certainly involve potential issues of discrimination of LGBTQ binational couples, the problem is really with the current legal definitions of parent as it relates to surrogacy in general. The State Department actually has a website dedicated answering questions related to foreign surrogacy and citizenship. The real issue is that the State Department relies upon genetic proof of parentage for foreign surrogacy births. In the present case, the surrogacy occurred outside the US, Elad is the genetic father of Ethan and Elad is not a US citizen; therefore Ethan is not a US citizen. While I’m deep in the weeds here, technically, Aiden and Ethan are not fraternal twins in the usual sense but rather half siblings (and this assumes that the donor eggs are from the same woman; otherwise the boys would be unrelated despite sharing the same pregnant womb through the magic of ART). Had Ethan been physically born via surrogacy in the US, he would have acquired his citizenship via jus soli (see US map for surrogacy friendly states near you).

This problem is just as confounding for heterosexual couples using foreign surrogates, and the problem is global. A more detailed technical legal discussion may be found here. A heterosexual couple using donor eggs and donor sperm and using a foreign third party surrogate would have exactly the same problem establishing US citizenship for “their” child. A similar problem would exist for an adopted embryo gestated in a foreign country by a foreign surrogate. If either the egg or the sperm of the US citizen is used for the surrogate birth, the child would be granted birthright citizenship.

The main difference for homosexual couples is that only one spouse can presently be the biological parent. I say “presently” because with ART it is theoretically possible (and may become actually possible in the future) to convert a human somatic cell into either a male sperm or a female egg. At that point, both spouses within a same-sex marriage could be the biological parents of their child. The present legal issue is not the result of a cultural prejudice against anyone’s sexuality but with the biological prejudice of sex itself. ART has the potential ability to blur the categories of sex as culture is now blurring the categories of gender. Should we consider this a good thing?

Given the present technological limits of ART, the simple issue of US citizenship could be resolved in all these cases if the US citizen parent simply adopted the child. Elad correctly points out that while adoption of Ethan by Andrew would grant Ethan US citizenship, it would not grant Ethan birthright citizenship, a necessary requirement for Ethan to someday run for US president. ART may be forcing us to look at changing our definition of parent but should it change our definition of biology? Ethan is the biological son of Elad. He is able to be the legally adopted son of Andrew and enjoy the benefits of US citizenship as currently does his half brother Aiden. He is not able to become the biological son of Andrew and enjoy the additional benefit of birthright citizenship via jus sanguinis.

Should we change the definition of birthright citizenship because ART is changing our definition of parent?

Surrogacy in the Market of Desire

The State of Florida has spilled no small quantity of ink outlining the legal confines of gestational surrogacy (see particularly sections 742.13-742.17, here).  Legally permitted gestational surrogacy in Florida does not include “bringing in and harboring aliens, sex trafficking of children, forced labor and furthering slave traffic,” however; these charges were leveled against Esthela Clark in 2015. Clark had held a Mexican woman in her one-bedroom apartment, repeatedly inseminating her with semen from Clark’s boyfriend. When the woman failed to become pregnant, she was forced to have sex with two strangers, and placed on a diet restricted to beans.  On 29 March 2017, the 47-year-old Clark from Jacksonville, FL, pled guilty to one count of forced labor. The woman had been forced to clean Clark’s apartment. (See story here.)  What happened to the issues surrounding the smuggling of the woman across the border in order to be a surrogate for Clark and her boyfriend?

On the other side of the globe, India is arguably the world’s leading provider of surrogate mothers, with the industry estimated several years ago as “likely worth $500 million to $2.3 billion.”  India legalized surrogacy in 2002, and is now considering reining in its surrogacy situation:

     The Surrogacy (Regulation) Bill, 2016

 

  • The Surrogacy (Regulation) Bill, 2016 was introduced by Minister of Health and Family Welfare, Mr. J. P. Nadda in Lok Sabha on November 21, 2016.  The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple and agrees to hand over the child after the birth to the intending couple.
  • Regulation of surrogacy:  The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.  Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.  Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.
  • Purposes for which surrogacy is permitted:  Surrogacy is permitted when it is, (i) for intending couples who suffer from proven infertility; and (ii) altruistic; and (iii) not for commercial purposes; and (iv) not for producing children for sale, prostitution or other forms of exploitation.

In their 2012 Journal of Medical Ethics article, Deonandan, Green and van Beinum formulate eight “Ethical concerns for maternal surrogacy and reproductive tourism

Robustness of informed consent

Custody rights

Quality of surrogate care

Limits of surrogate care

Remuneration

Multiple embryo transfers and abortion

Medical advocacy

Exploitation of the poor

Of the eight ethical concerns Deonandan et al found in the Indian experience of surrogacy, at least five of them were present in the Florida case described above –and that would-be surrogate was not even pregnant! It seems that India is not the only entity that should reconsider commercial surrogacy.

 

— D. Joy Riley, M.D., M.A., is executive director of The Tennessee Center for Bioethics & Culture.

Easter, Fertility, Surrogacy

Most of us who celebrated Easter yesterday likely took part in the tradition of the Easter egg hunt. The egg, an obvious symbol of fertility, is an essential part of our spring celebration. Interestingly, the subject of fertility and “social surrogacy” was the focus of an article in Elle magazine last week. The piece told the story of an aging professional who felt she needed to have a baby, but since actually being pregnant is so inconvenient she hired a surrogate. The interesting part about this article is that it gave voice to the concerns that using a surrogate for non-medical reasons was “wrong” or “selfish.” Of course, none of these concerns were articulated very robustly, but at least they were explored. They actually interviewed Ruth Faden of the Berman Institute of Bioethics at Johns Hopkins and quoted her as saying that the “why” influences the ethical dimension of surrogacy.  It is great that a magazine with such a large readership like Elle would try to tackle a subject like “social surrogacy” as it must feel that this topic is relevant to young women today. What is most striking is how there is clearly an uneasy conscience about this practice, but it cannot be described in a very meaningful way when the reigning paradigm for ethical behavior is utilitarianism and free-market economy. Issues such as the commodification of children are not even discussed.  The narrative that this practice exploits women of lower socioeconomic status is flipped to state that it can actually empower these women.
For those teaching undergrads or even med students, this is an accessible introduction to the issues and can be used to foster discussion. It is really hard to come down against this practice without a content-full account of the meaning of family, motherhood, and the notion that a child is a gift from God.  It is our job to help our students and trainees find that content.

Surrogacy: Begotten or Made?

In 2010, the last year with data available, there were about 859 reported in vitro cycles initiated using a gestational surrogate in the United States.[i] Each year since 2007 the number of IVF cycles using a gestational surrogate has increased with the practice becoming more widely known and socially accepted.[ii]  These numbers, though, are underreported since the data only reflect surrogacy initiated through IVF and only take into account IVF clinics that are members of the Society of Assisted Reproductive Technology.

There are many terms floating around in connection with surrogacy.  For purposes here, traditional surrogacy represents surrogacy initiated through artificial insemination and use of the surrogate’s gametes.  Gestational surrogacy differs from this for it typically involves IVF using the contacting parent’s gametes or the gametes of a donor.

Further still, I will be speaking only of altruistic surrogacy (surrogacy wherein the surrogate is not compensated for the child to whom she has given birth, but may be compensated for medical expenses and gestational services rendered) as opposed to commercial surrogacy (compensation for all of the above including payment for the child).

One common argument against surrogacy is that it makes a strange or unnatural familial unit.  For example, the surrogate may be the biological grandmother or aunt of the child or the surrogate may not be any relation to the family at all.  This, then, places the child in the awkward situation of not knowing whom s/he should consider his/her mother.

Another argument against surrogacy is that it works best when the surrogate mother is emotionally detached from the baby so that after the birth she is able to hand the child over to the contracting parents with no or reduced emotional difficulty.  The obvious problem with this, though, is that this is not healthy for the child in utero to have an emotionally detached mother.

Finally, opponents of surrogacy view this arrangement as a violation of the one-flesh relationship.  That is, the familial unit is corrupted when gametes and/or wombs of other individuals are used to produce a child.

These are all functional arguments commonly used against surrogacy.  The problem, however, is that all of these arguments could be applied to adoption.

Adoption confuses the familial unit especially in cases wherein grandparents, parents, aunts, uncles, cousins, etc. are asked to raise a child on behalf of another family member who is unable to parent.  Oftentimes the pregnant woman must detach herself from her child while in utero so that on the day of the adoption she may place him/her with the adoptive family.  Finally adoption most definitely violates the one-flesh relationship because gametes and wombs other than those of the adoptive parents are being used.

No Christian, however, would be willing to argue against adoption.  It is quite the contrary!  The theme of adoption runs through scripture from Old Testament to New.  A short list of examples include people such as: Moses, Esther, Jesus, and last but not least, those of us Gentiles who have been grafted in.

So what do we do when our own arguments against surrogacy preclude adoption?

The fundamental difference between surrogacy and adoption is children who are made versus those who are begotten.  Children made are those who have been solicited by a contracting couple.  Those begotten have been conceived free from solicitation of another woman’s womb, gametes, or another man’s sperm.  It is here, in the distinction of begotten and made, that arguments against surrogacy should lie.  (It is important to note that children retain their dignity and continue to image God no matter the circumstances under which they were conceived.)

To make the distinction more clear, adoptive parents receive their child as a gift—a gift that does not have to be fashioned by them or fashioned to be like them genetically.  Contracting parents, on the other hand, accept their child as a product built to their specifications.

Solicitation, on the outside, may not appear problematic because the contracting parents clearly and desperately want the child.  However, is being wanted the greatest good or even what is best for the child?  Children made through these artificial means have a compromised right to an open future.  Adoptive parents, on the other hand, accept their adopted child for who they are instead of determining from the beginning who they should be.

 



[i] “Clinic Summary Report,” Society for Assisted Reproductive Technologies, accessed January 24, 2013, https://www.sartcorsonline.com/rptCSR_PublicMultYear.aspx?ClinicPKID=0.
[ii] Ibid.

Eight is Enough

 

In response to a family’s having eight babies by IVF and gestational surrogacy:

“In this society, if you have money, you can have miracles!”

“Having children is now a luxurious game for the rich!”

“This completely topples the traditional meaning of parents.”

“From the sound of it, they just tried to have some kind of baby machine.”

“Gestational surrogacy is the business of renting out organs.”

“Why did they have to hire so many people to have babies for them? Did they think they had the right to bear children just because they were rich? Secondly, what respect to life did they show? Multiple pregnancies are super risky.”

These are reactions from the public, press, and government officials to a wealthy couple having two sets of triplets and one set of twins via IVF and two surrogates in China, where there has been an official one-child-per-family policy since 1978. Last month a southern Chinese newspaper broke the story of this family, and you can sense the angry reaction of their society in the quotes above.

(There is apparently a large surrogacy industry in China, despite a 2001 ban on Chinese hospitals doing the procedures. The manager of one surrogacy agency reports being overwhelmed with applications from aspiring surrogate mothers, most of whom are having emergencies and “need a large sum of money.”)

In the uproar, we can see erupting some of the tensions surrounding these technologies that are still somewhat under the surface in our own society: What about the divide between those who can and can’t afford reproductive technology? What does it mean to be a parent, especially where surrogacy is involved? Is surrogacy the commodification of women, the reduction of woman to womb?

There is a lot of worrying that China will catch up and surpass western economy and culture. It seems that in some areas they have already caught up with us: pushing the envelope of societal norms with the use of reproductive technologies, and the commodification of women in the process. In another area they are still far behind us: they have not yet lost the ability to be uncomfortable, shocked, even a little disgusted at the ethical implications of these technologies for families and society.

 

(Sources: Here and Here)