FPIW Testimony in Opposition to Paid Surrogacy Bill

Yesterday, the Family Policy Institute of Washington testified before the Senate Government Operations, Tribal Relations & Elections Committee in opposition to HB 1267. Below is a copy of the testimony we will be providing to the committee.

Thank you for this opportunity to testify on behalf of the Family Policy Institute of Washington in opposition to HB 1267.

There are a number of issues that we are concerned about. The first is more symbolic. This bill would replace the words mother and father in state law with the word “parent”. We are concerned with this provision because state government would be changing an expectation that we believe serves the public well.

Currently, the law, in both its language and its forms, has the expectation that when a child is born both its mother and father will be involved. We see no reason to change this. Encouraging the biological mother and father to be involved in the lives of the children they produce has served humanity well for thousands of years.

Of course there are many situations in which the ideal is not realized. State law should and does accommodate for those situations. But accommodating for situations that are not ideal is far different than changing our expectations for the conditions under which children will enter the world.

The second concern is similar. This bill would expand the situations under which someone can be assumed to be the parent of a child. Currently, a person is assumed to be the parent only when he is married to the woman that gives birth. To date, state law has never taken the step of assuming parental rights for someone we know for certain is not biologically related to the child. Of course a husband is not always the biological father of the child. But assuming that he is, when in rare circumstances he will not be, is far different than automatically granting parental rights to someone we know is not a biological parent.

Currently, the law requires someone who is not biologically related to the child to go through a legal adoption before they are given parental rights. That system is not broken. While the adoption process can be inconvenient, the nature of the rights at stake warrant a careful, individualized examination of the facts before anyone is granted parental rights. This bill would grant parental rights based on the relationships of adults. That is not appropriate when the basis for granting parental rights has, and should always be, “the best interest of the child.” Such a change would be easily abused. Any convenience this bill creates for adults is far outweighed by the potential for instability created for the children.

Finally, we are concerned with the provision of this bill that would permit the purchase of parental rights. It has been argued that this bill is simply written to acknowledge something that already happens, surrogacy, and clarify how disputes should be handled. If that were true, this would be a much different bill. It would be simple to write a bill that clarifies that parental rights belong to the man and woman whose genetic material created a child when a surrogate is knowingly impregnated with their child.

But this bill does not do that. This bill, for the first time since slavery, allows legal rights to another person to attach based on the exchange of money, even if the surrogate is genetically related to the child. And for the first time, it allows a woman to sell the parental rights to her biological child. This bill is not written to clarify how disputes should be resolved. It is written in a way that ensures disputes over surrogacy will become far more common than they are today.

The purpose of the bill is to expand the number of women who are willing to be surrogates by introducing a profit motive.

Currently, women in Washington who agree to be surrogates do so out of altruism. When surrogacy is voluntary, the likelihood of changing your mind is reduced significantly. Once you encourage women who would not do something for love to do it for money, you greatly increase the likelihood that they will change their mind. And when you increase the likelihood of changing their minds, you increase the kind of occurrences the sponsors of this bill claim to want to avoid.

We do not believe it will ever be appropriate for the law to resolve a surrogacy dispute based on the exchange of money. The standard for deciding custody issues and parental rights has always been determined by “what is in the best interest of the child.” While we can easily understand the difficulty of surrogacy disputes, it would be a tremendous mistake if the disputes were resolved based on the exchange of money rather than the best interest of the child. Sometimes the reason you make a decision is just as important as the decision you make. This is one of those situations.

The idea of parental rights being the subject of a commercial transaction is something we all should object to. We do not allow those in financially challenging situations to sell their kidneys for financial relief. Why should they be permitted to sell their womb or their child, even if they do so before it is conceived?

This bill allows a woman to enter an agreement whereby, once she has taken money and been impregnated, she may only abort the child or give it to someone else, even if the child is biologically hers. Encouraging women to put themselves in that situation by enforcing such contracts will put women in extraordinarily stressful situations that are certain to result in unfortunate results. As a result, this bill would put Washington State in the position to forcibly take a child from its mother, even in cases where the child is biologically hers, because she took money in exchange for that child before it was conceived. That is not an appropriate use of state resources.

Moreover, the women who will be lured into these situations by this bill are the very women the law should go out of its way to protect. While this bill claims to have numerous safeguards, like so many other situations in which the exceptions swallow the rule, it would be incredibly easy to satisfy the letter of the law without fulfilling the spirit of the law by simply finding a lawyer and counselors who will play along. By introducing a profit motive, you create a strong incentive for that to happen.

This bill creates problems where there currently are none and fixes nothing. It is not the job of the Washington State legislature to solve infertility issues. It is the job of the Washington State legislature to protect the individual rights of the citizens in Washington and ensure, to the best of our ability, that people are not taken advantage of.

While we can sympathize with individuals who are unable to have a child themselves, there are options for those unable to find a volunteer surrogate. There are thousands of children in Washington who are currently alive that have no one in the world willing to say “I will love you forever”.

Whatever the alternatives, they are all better than making the wombs of vulnerable women and the children they produce the subjects of commercial transactions.