(Image
via
Getty)
Surrogacy
arrangements
have
steadily
gained
acceptance
in
the
United
States.
You
probably
even
know
someone
who
has
used
surrogacy
to
grow
their
family.
Indeed,
the
typical
surrogacy
arrangement
isn’t
controversial
or
full
of
drama,
despite
what
readers
of
this
column
might
think!
Generally,
a
woman
is
represented
by
an
attorney
and
knowingly
enters
into
a
contract
with
intended
parents,
and
then
carries
a
child
not
genetically
related
to
her.
It’s
a
process
that
thousands
of
individuals
and
couples
have
used
without
incident.
Following
the
trend
toward
general
acceptance,
just
last
month,
Michigan
—
the
only
state
left
that
had
gone
so
far
as
to
criminalize
compensated
surrogacy
arrangements
—
abruptly
reversed
course.
Gov.
Gretchen
Whitmer
signed
into
law
the
Michigan
Family
Protection
Act,
removing
any
criminal
penalties
for
compensated
surrogacy
and
adding
surrogacy
supportive
laws
that
are
designed
to
protect
the
surrogate,
the
intended
parents,
and
the
child.
Yet,
despite
this
pro-surrogacy
trajectory,
one
player
in
the
surrogacy
equation
has
received
attention
as
the
villain
of
the
story.
The
Brokers
Surrogacy
“brokers”
are
also
known
as
surrogacy
agencies,
matching
programs,
or
coordinating
programs.
They
are
the
people
who
facilitate
the
arrangement
between
the
intended
parents
and
the
surrogate.
They
match
would-be
gestational
or
genetic
surrogates
to
hopeful
intended
parents,
and
coordinate
and
support
the
process.
However,
unlike
adoption
agencies
which
are
highly
regulated
and
require
licensing,
technically,
anyone
can
put
themselves
out
there
as
a
“surrogacy
agency”
without
governmental
vetting.
So
that
often
raises
eyebrows.
Notably,
one
state
recently
tried
—
but
failed
—
to
reverse
its
ban
on
surrogacy
brokers,
and
another
one
introduced
new
legislation
to
ban
brokers
within
the
state.
Virginia
HB110
In
January
2024,
Virginia
HB110
was
introduced
with
the
simple
goal
of
removing
the
outdated
and
unused
surrogacy
broker
prohibition
contained
in
Virginia
Code
§20-165.
That
section
of
the
law
states
that
“it
is
unlawful
for
any
person,
firm,
corporation,
partnership,
or
other
entity
to
accept
compensation
for
recruiting
or
procuring
surrogates
or
to
accept
compensation
for
otherwise
arranging
or
inducing
an
intended
parent
and
surrogates
to
enter
into
surrogacy
contracts
in
this
Commonwealth.
A
violation
of
this
section
shall
be
punishable
as
a
Class
1
misdemeanor.”
The
law
further
provides
that,
“Any
person
who
acts
as
a
surrogate
broker
in
violation
of
this
section
shall,
in
addition,
be
liable
to
all
the
parties
to
the
purported
surrogacy
contract
in
a
total
amount
equal
to
three
times
the
amount
of
compensation
to
have
been
paid
to
the
broker
pursuant
to
the
contract.”
Virginia
attorney Colleen
Quinn was
a
staunch
advocate
of
the
bill
that
would
have
undone
this
restriction
that
puts
unnecessary
hurdles
in
the
surrogacy
process.
She
testified
in
support
of
the
bill,
and
worked
to
explain
its
importance
to
legislators.
She
described
that
the
ban
currently
goes
unenforced
anyway,
since
many
agencies
operate
within
Virginia,
generally
because
they
don’t
actually
know
about
the
arcane
law.
However,
the
effect
of
the
law
is
a
negative
one,
Quinn
explains,
where
those
who
do
know
about
the
law
are
scared
away
from
providing
the
helpful
resources
and
support
that
an
agency
can
provide.
Intended
parents
and
surrogates
who
may
very
much
want
the
support
of
an
agency,
are
unlikely
to
feel
they
can
afford
the
risk
of
“aiding
and
abetting”
or
being
an
accomplice
under
a
criminal
statute
within
the
Commonwealth,
even
if
the
agency
is
outside
of
Virginia.
Quinn
also
explains
that
the
proposed
bill
only
worked
to
remove
the
broker
ban,
but
did
not
remove
the
robust
legal
requirements
and
safeguards
protecting
intended
parents,
the
gestational
carrier,
and
surrogate-born
children
in
Virginia.
The
Veto
Quinn’s
reasoning
was
heard
loudly
and
clearly
by
Virginia’s
House
and
Senate
legislators,
with
both
legislative
bodies
passing
the
bill.
However,
on
March
8,
2024,
Gov.
Glenn
Youngkin
unfortunately
vetoed
the
bill.
In
that
veto
statement,
he
claimed
that
“Commercial
surrogacy
brokers,
driven
primarily
by
financial
gain,
may
divert
attention
from
the
successful
pregnancy,
the
welfare
of
the
child,
and
the
interests
of
both
the
intended
parents
and
the
surrogate.”
And
that
“allowing
brokers,
who
are
contractually
obligated
to
represent
the
intended
parents,
leads
to
the
possibility
of
coercion
and
abuse
of
surrogates.
Human
trafficking
related
to
commercial
surrogacy
is
increasing
worldwide,
resulting
in
exploitation,
extortion,
and
ethical
abuses
such
as
requesting
specific
hormones
or
medications
for
the
surrogate,
which
would
be
exacerbated
with
commercialization.”
Hmmmm.
Disappointing
to
see
misconceptions
and
fearmongering
winning
out
against
the
interests
of
Virginian
families.
West
Virginia
Bill
SB
575
Of
course,
Virginia
was
not
the
only
state
in
Q1
2024
to
legislatively
struggle
with
whether
surrogacy
brokers
should
be
permitted.
On
January
26,
2024,
West
Virginia
Senate
Majority
Leader
Tom
Takubo
introduced SB
575.
The
bill
was
generally
pro-surrogacy,
with
familiar
safeguards
similar
to
those
contained
in
surrogacy
supportive
legislation
in
other
states.
However,
the
bill
also
contained
a
prohibition
on
any
“commercial
surrogate
broker”
where
“[a]ny
person
or
entity
in
this
state
acting
as
a
commercial
surrogate
broker
is
guilty
of
a
misdemeanor
and
upon
conviction,
shall
be
fined
not
more
than
$10,000
or
confined
in
jail
for
not
more
than
one
year
or
both
fined
and
confined.”
The
bill
defined
“commercial
surrogate
broker”
to
mean
“a
person,
firm,
corporation,
partnership
or
other
entity
that
accepts
compensation
for
recruiting
or
procuring
surrogates
or
which
accepts
compensation
for
otherwise
arranging
or
inducing
intended
parents
and
surrogates
to
enter
into
surrogacy
contracts
or
surrogacy
agreements.”
Fortunately,
No
Dice
—
This
Year
SB
575
passed
the
West
Virginia
State
Senate.
However,
the
West
Virginia
2024
legislative
session
concluded
on
March
9,
2024,
without
SB
575
making
it
through
the
House.
The
result:
surrogacy
brokers
remain
legal
in
West
Virginia.
For
now.
In
Defense
Of
The
Brokers
First,
I
have
to
acknowledge
that
I
am
not
a
neutral
party.
I
co-own
one
of
those
“distracting”
brokers,
although
I
can
give
you
the
no-human-trafficking
guarantee,
as
can
every
agency
that
I
have
personally
worked
with.
Separately,
while
I
have
written
on
some
bad
acts
by
surrogacy
brokers
—
such
as
when
a
broker
runs
away
with
his
clients’
money
—
my
experience
has
been
that
matching
willing
and
consensual
parties
to
a
fair
contract
—
with
the
end
result
being
a
baby
—
is
beautiful
and
meaningful.
Moreover,
American
surrogates
are
categorically
not
women
who
are
being
coerced
and
controlled,
but
those
who
are
empowered
to
make
this
decision
for
themselves,
often
persuading
a
spouse
or
partner
over
initial
objections.
There
is
no
state
in
America
where
surrogates
may
legally
be
coerced
or
where
babies
may
be
sold
or
trafficked.
And,
while
I
don’t
know
the
statistics,
I
would
not
be
surprised
if
a
majority
of
U.S.
surrogacy
brokers
are
either
owned
or
operated
by
women
who
have
previously
acted
as
surrogates
themselves
and
who
know
how
to
best
provide
support
during
the
process.
The
director
of
my
agency,
Bright
Futures
Families,
Amanda
Kinnard-Fuchsgruber,
describes
her
experience
seeing
friends
struggle
with
infertility
and
her
willingness
to
be
their
surrogate.
Without
an
agency
to
advocate
for
her
and
navigate
the
waters
of
attorneys,
court
orders,
medical
bills,
and
insurance,
the
journey
faced
a
number
of
obstacles.
She
wishes
that
she
and
her
friends
—
the
intended
parents
—
had
had
the
support
of
an
agency.
Kinnard-Fuchsgruber
now
makes
it
her
profession
to
provide
to
others
the
support
that
she
wishes
she
had
had.
Jennifer
White,
co-owner
of
Bright
Future
Families
(and
my
sister!),
explains
that
“a
great
surrogacy
agency
screens
potential
surrogates
using
the
American
Society
for
Reproductive
Medicine
(ASRM)
guidelines
for
medical,
psychological,
and
financial
health.
They
are
there
to
support
the
entire
process
—
which
can
be
very
emotional
and
difficult
for
some.”
Moreover,
she
explains
that
a
good
agency
makes
sure
that
both
sides
are
protected,
supported,
and
educated
throughout
the
process.
In
fact,
she
notes
that
“a
truly
great
agency
may
seem
almost
invisible,
as
they
are
there
to
facilitate
the
surrogacy
journey,
not
be
the
journey
themselves.”
For
now,
Virginia
is
the
oddball.
Surrogacy
agencies
are
permitted
in
49
of
the
50
states.
(With
many
accidentally
open
in
Virginia
illegally.)
Regulations
are
important
—
all
parties
should
play
by
the
rules
for
their
own
protection
as
well
as
the
protection
of
others.
But
while
there
are
still
improvements
to
be
made
and
issues
to
be
confronted,
let’s
not
encourage
or
support
legislation
that
ultimately
causes
more
harm
than
it
is
attempting
to
solve.
Ellen
Trachman
is
the
Managing
Attorney
of Trachman
Law
Center,
LLC,
a
Denver-based
law
firm
specializing
in
assisted
reproductive
technology
law,
and
co-host
of
the
podcast I
Want
To
Put
A
Baby
In
You.
You
can
reach
her
at babies@abovethelaw.com.