Phyllis Chesler and Susan L. Bender are genuinely concerned with the well-being of women and all people and I respect that.

Unfortunately, they have no idea how surrogacy really works. They consider it only in the abstract, unaware that some of the restraints they lobby for already exist.

Why do Chesler and Bender assume a gestational carrier is weak and powerless? She is no mere vessel. First and foremost, carriers do not give up the right to termination. If these authors ever read a surrogacy contract, they would be familiar with this.

The circumstances for termination are discussed with all parties before the process begins, and all are in agreement beforehand. There are no forced abortions or rejections of imperfect babies, nor do carriers suppress desires to keep babies which are not theirs. Carriers retain the absolute right to do what they wish vis a vis termination consistent with federal and local law. This is memorialized in every gestational carrier agreement.

(For practical purposes, terminations are exceedingly rare. Embryos are almost always tested ahead of transfer and the standard these days is to transfer 1-2 chromosomally normal ones.) The authors also seem unaware of the medical and psychological scrutiny that surrogates and intended parents undergo, performed by experienced clinicians.

If these authors met just some of the hundreds of gestational carriers I have counseled and worked with, they would realize that the birth mother/newborn bond is not violently disrupted. The intended parents are part of the process at every point, including in the delivery room. And as long as the intended parents and carrier mutually decide on it, carriers often pump breast milk for the intended parent’s child (as part of an effort to continue to help provide for the baby they brought into the world – there is often an eagerness and appreciation from both sides for this to occur).

A gestational surrogate gestates an embryo created via IVF from an egg which is not hers. The baby has no genetic relationship to the surrogate. She is not a birth mother with rights to the child. This is in contrast with “traditional” surrogates, who are impregnated via IUI (intra-uterine insemination) and therefore give birth to their genetic children. Traditional surrogacy contracts are almost always unenforceable and these arrangements are hardly ever done (when there is a commercial aspect involved).

If a woman is to have true sovereignty over her body, she should be free to choose to have a child, have an abortion, donate her eggs, or be a surrogate mother. The Child-Parent Security Act is not a slippery slope to an underclass of commercial breeders any more than legalizing same-sex marriage led to people marrying their pets. Third party reproduction with common-sense restraints (as outlined in surrogacy contracts and maintained by IVF clinicians) allow us to enjoy real reproductive freedom.

Sanford M. Benardo is an assisted reproduction lawyer in New York and co-founder of the Northeast Assisted Fertility Group. 

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