South Dakota lawmakers look to ban commercial surrogacy

South Dakota, Down syndrome

A bill that would make commercial surrogacy illegal in South Dakota has passed the state House. House Bill 1096 passed by a 40-26 vote and will now head to the Senate where, if it passes, Governor Kristi Noem will have the option of signing it into law. Yet some are criticizing the bill, claiming it will effectively ban all surrogates.

“This bill effectively would shut the door on all surrogacy,” Emilee Gehling, an attorney who specializes in surrogacy and adoptions, said in an interview with KELOLAND News. “The way the language is written, it’s not carefully drafted.” Yet Jon Hansen, who was the lead sponsor of the bill, says this is not true.

“This bill bans commercial businesses, who profit off the buying and selling of children,” he told KELOLAND News. “Making a commodity of mothers and children and bans enforcement of contracts.” He added, “I don’t have all the answers for everyone. I pray that adoption might be the answer for some, but I do know that making for-profit business and commodities out of mothers and children is wrong.”

Altruistic surrogacy, where women would be reimbursed for health care costs and other expenses but otherwise are not paid, would still be legal. It would only be illegal for surrogates to be paid extra money, which is often through for-profit agencies.

While on the surface, surrogacy can seem like a good thing, it is an industry fraught with ethical issues. Federally, the surrogacy industry is completely unregulated, and by its very nature, turns a woman’s body into something to be bought and sold. Surrogates have been pressured to have abortions, even against their will, for reasons of the baby’s gender, the baby’s disability, or if carrying multiples.

READ: ‘Social surrogacy’ on the rise in U.S. for reasons of convenience

What is being left out of the debate by surrogacy advocates, however, is that the surrogacy industry frequently preys on low-income women, with parents renting the wombs of desperate women for tens of thousands of dollars. Celebrities like Kim Kardashian, Nicole Kidman, and countless more, are the most notable examples of this gross power imbalance, with wealthy couples giving — on average — $50,000 for a woman to bear their child. This is likewise becoming more frequent with gay male couples who wish to have children.

As the Richmond Journal of Law and Technology (JOLT) points out, some of the parents are spending in excess of $100,000. Low-income military wives are also some of the most-used surrogates, as military wives tend to be underemployed, and if their husbands are deployed, making enough money to make ends meet can be incredibly difficult. As JOLT explains, there’s a reason why surrogacy agencies see military wives as so desirable, and it highlights the entire problem with commercial surrogacy: military wives are seen as “women with limited job opportunities, limited income, and minimal medical expenses.”

Surrogates also have “unequal bargaining power,” as they tend to be lower-income while the buying couple is wealthier, so when a surrogate is being pressured to have an abortion, it can be very hard for her to fight back. Banning commercial surrogacy is long overdue.

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