Pope Francis’s Call to Ban Surrogacy: A Critical Examination

Written by Ciara Beaulieu, Associate Attorney
March 26, 2024

Pope Francis recently called for a universal ban on surrogacy, a practice he considers “deplorable” and a “grave violation” of women’s dignity. His remarks, couched in a foreign policy speech to ambassadors about emerging threats to global security, depict surrogates as nearly always low-income women and the children they deliver as “objects of trafficking.”

The Pope’s surrogacy characterization is nothing new. We have seen similar rhetoric since surrogacy’s inception, particularly from influential leaders without direct experience in assisted reproduction. It is also not an accurate representation of the beautiful, empowering, and mutually fulfilling gift of gestational surrogacy—at least as it is practiced in the United States, through reputable agencies like Creative Family Connections (CFC) and many others.

Myth 1: Gestational surrogacy, whether compassionate or compensated, exploits a surrogate’s financial situation.

Compassionate Gestational Surrogacy: “Compassionate” gestational surrogates (with no biological connection to the child) receive reimbursements throughout their journey instead of financial compensation or “base pay.” There is a myth that compassionate surrogates risk exploitation in the form of unpaid hospital bills and other non-reimbursements by the intended parents. The reality, however, is that all gestational surrogates are entitled to reimbursement for their time, energy, and discomfort. They can be protected by advance payments, with the use of escrow or trust accounts, which are used to cover physician co-pays, hospital bills, IVF medications, gas mileage to and from appointments, and travel costs.

Compensated Gestational Surrogacy: Financial benefits are just one factor that candidates consider when applying to be a compensated surrogate. Surrogacy compensation cannot be a surrogate’s primary financial support for the household per guidance from The American Society for Reproductive Medicine (ASRM). Furthermore, our industry’s ethical standards exhort agencies to conduct robust financial assessments to ensure surrogates candidates are not experiencing financial coercion or exploitation. Agencies, therefore, review recent bankruptcy, liens, multiple forms of government assistance, credit debt, other debts, child support, and more to determine if a surrogate can ethically move forward in a journey.

Agencies like CFC listen directly to surrogate candidates as to why they choose to help intended parents build their families. Almost ubiquitously, surrogate candidates share how they deeply enjoy pregnancy and feel compelled to help families who cannot otherwise conceive without assistance. Helping another family through surrogacy is one of the most selfless and loving acts a person can undertake should they choose to.

“I know the joy my children have brought to my life, and I believe everyone should be able to find a similar happiness in their lives. Because I loved being pregnant and had easy pregnancies, it just made sense to help someone who couldn’t carry a baby on their own.”

 –Carrie Jordan, Experienced Surrogate and CFC Journey Coordinator

Myth 2: Surrogacy is a “grave violation” of a woman’s dignity.

Protecting surrogates’ dignity and bodily integrity is critical to ensuring our industry is ethical. Therefore, reputable agencies equip surrogates with the tools they need to provide enthusiastic and informed consent to every aspect of the journey.

All surrogate candidates meet with a licensed reproductive endocrinologist who explains the cycling and embryo transfer process and all risks associated therewith. The reproductive endocrinologist also reviews the candidate’s medical history prior to the appointment to determine the likelihood that the candidate can safely carry a surrogate pregnancy and alerts her to any unique risks particular to her own health and body.

Surrogate candidates also meet with a licensed mental health professional prior to an embryo transfer. They can also opt for additional sessions throughout the pregnancy and immediately post-partum.Pregnancy has hormonal and emotional implications that can be intensified in a surrogacy journey. This counselor can help surrogates navigate the mental and emotional aspects of the journey in a healthy and dignified way. An agency also ensures that surrogate candidates have strong emotional support networks and communities that can provide additional support during the pregnancy and post-partum.

Finally, agencies like CFC ensure surrogates have access to licensed, independent legal counsel to protect their rights and interests throughout the journey. Critical to the surrogacy is a legally binding contract between the intended parents and surrogate that details each party’s rights and responsibilities throughout the journey. While negotiating this contract, the surrogate’s attorney is vital to advocating for a contract that memorializes the surrogate’s interests and ensuring she provides informed consent to every contract term.

Finally, our agency journey coordinators are pivotal in safeguarding the surrogates’ well-being by providing hands-on constant support to make sure needs are met and voices heard throughout matching, the pregnancy, and after delivery. At Creative Family Connections, we offer high-touch support, because we agree wholeheartedly with the following:

“We should… work towards a world that upholds the profound dignity of every person, at every stage and in every circumstance of life.”

-U.S. Conference of Catholic Bishops spokesperson Chieko Noguchi

Myth 3: Surrogates & children born through surrogacy are human trafficking victims.

Human beings are not property, and it is illegal to treat them as such in the form of forced labor or exploitation. Unlike forced labor, surrogacy involves explicit, informed consent every step of the way for both surrogates and intended parents. In the majority of cases, intended parents care for their children born through surrogacy just as other parents care for the children they naturally conceived and delivered without third party assistance.[1] Intended parents do not enter into a surrogacy arrangement to “purchase” a child from their surrogate. In fact, they do not even pay her to deliver a child, which would violate many US and international laws.

Instead, intended parents are ethically and legally obligated to reimburse gestational carriers for their time, energy, discomfort, and additional expenses during the surrogacy. Expenses include travel costs for the embryo transfer, lost wages, and childcare when a surrogate must miss work for an appointment, for delivery, or post-partum. Financial stipends for surrogacy also include maternity clothes, medication, insurance premiums, uninsured medical costs (including mental health counseling), and legal costs, among many others outlined in more detail here.

In rare circumstances, if a surrogate must undergo an invasive, non-routine test or procedure (like a c-section or amniocentesis), she is often entitled to an additional stipend in consideration of associated discomfort and reimbursement for any expenses related to that procedure. In determining what an appropriate stipend would be in these instances, CFC works carefully to design a reimbursement and stipend plan that is ethical, fair, and consistent with industry standards. Even if a miscarriage or still-birth happens, which is devastating for all parties, the surrogate contract requires that the parties uphold all payment obligations. A surrogate’s compensation is not conditioned on delivering a child. Medical complications can happen, which the parties carefully discuss and outline well in advance of an embryo transfer.

Lastly, there is an unfounded misconception that surrogate babies, or “surrobabies,” experience trauma at birth because they are “removed” from the person who birthed them, despite hospital staff facilitating immediate skin-to-skin contact between the baby and the legal intended parents. Yet, there are numerous studies coming out that confirm that surrogate babies are as happy, if not happier, than other children born through other “traditional” methods because the parents have worked extraordinarily hard “to navigate the cultural, legal, and financial barriers” associated with assisted conception to bring their child into the world.

Myth 4: Paid surrogacy and reproduction have no place in commercial contracts.

Individuals who vehemently condemn surrogacy often are unaware of the legal care and attention that goes into surrogacy contracts. In the United States, all parties involved in a gestational carrier arrangement – the intended parents, surrogate, and surrogate’s partner, if applicable—must enter into a legally binding contract. This contract is extremely important for a few reasons:

Contracts protect and affirm all parties’ reproductive freedom and, specifically, the surrogate’s bodily autonomy. In every surrogacy agreement, CFC memorializes that surrogates retain their inalienable right to bodily integrity. In other words, the surrogate alone has the right to make decisions about her health and body during the pregnancy. If a decision relates solely to the child’s health and well-being, the contract empowers intended parents to be the decision-makers. And, where there is inevitable overlap, the intended parents and surrogate agree to come together and make a joint decision by informed mutual consent.

Since all surrogacy arrangements are vastly different, contracts are carefully tailored to a match’s unique circumstances. Surrogacy laws in the US vary by state. Determining whether a match is legally and ethically appropriate between surrogates and their intended parents is an involved process that varies depending on identities, personalities, beliefs, states of residence, and unique preferences.

Before matching a surrogate to intended parents, CFC ensures that the legal landscape (or the laws where the surrogate lives and those where the intended parents live and plan to raise their child) will provide a path for the intended parents to successfully become the child’s legal parents before or shortly after birth, via a pre-birth court order or a post-birth court order.

But the legality of the arrangement is just one consideration. CFC meets with intended parents and surrogates individually and collectively to ensure their personalities, lifestyles, belief systems, and decision-making strategies are compatible. The intended parents and surrogate then meet to decide if they agree they are, in fact, a good match. We then use these characteristics to design a personalized contract tailored to each match.

Contracts facilitate positive and methodical communication, giving rise to a positive and mutually fulfilling relationship between intended parents and their surrogate. There are incalculable circumstances that could arise during a pregnancy, and particularly when the pregnancy involves a third party—a surrogate—that all parties are on the same page regarding how they might approach these unexpected and unique circumstances.

For this reason, all surrogacy contracts undergo a vigorous and comprehensive negotiation process where we discuss every possible scenario – from job and marital status changes to medical decision-making and reimbursement processes—so that once the parties execute their contract, they can prioritize building a healthy and durable relationship with one another. To this end, the intended parents and surrogate are each represented by separate, independent legal counsel.

Contracts guarantee that the surrogate and intended parents provide informed consent to every aspect of the journey. As a minimum requirement for a contract to be enforceable, there must be “mutual assent.” Mutual assent means that all parties must have had a full opportunity to consider, understand, and provide their unequivocal and informed consent to each of the contract’s terms.

To ensure each party can provide their informed consent, they must have separate and independent attorney advocates who can help them understand their rights and obligations under the contract and negotiate any items. Attorneys achieve informed consent by reviewing every term in the contract with their clients (either the surrogate or the intended parent) and gauging their understanding of and comfort with their rights and obligations.

At the end of the day, we agree with Pope Francis that exploitation is never, under any circumstances, appropriate. Where our views diverge, is in our belief that all human beings must retain their rights to make autonomous decisions about their bodies.

At Creative Family Connections, we believe that exercising bodily autonomy includes the ability to decide whether to assist other people via assisted conception and surrogacy. So, rather than eradicate surrogacy altogether, Creative Family Connections urges every surrogacy agency to hold itself to the highest ethical standards in the assisted reproduction industry, promoting safety and protecting surrogates’ rights to make informed and empowered decisions about their bodies every step of their journey.

Specifically, CFC’s founder Diane Hinson and our Director of Surrogacy and Legal Services Jen McGill Co-Chair the Standards Committee for the Society for Ethics in Egg Donation & Surrogacy (SEEDS). This is the Committee charged with establishing ethical standards for those practicing in our field; it ensures practitioners protect and uphold the reproductive freedom of all parties involved in assisted conception. SEEDS adopted ethical standards for all agency members. In addition, as our founder Diane Hinson stated, “We lead the industry by example.”

“CFC’s legal team operates with the utmost attention to detail to ensure our work is legal, ethical, and enjoyable for all parties.”

-Samantha Sandefur, Experienced Surrogate and CFC Paralegal

All paths to parenthood can be beautiful when consent, legal considerations, and passion go hand-in-hand. Myths about family building and surrogacy are only that: myths designed to obfuscate the rights of women to give forward to help intended parents build families. Let’s make sure their rights are protected.

Ciara Beaulieu, Associate Attorney with Creative Family Connections

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