On June 12, the Massachusetts House is expected to vote on a bill that would allow mothers to exchange their children for money—that is, engage in baby-selling—under the name of “parentage equality.”
The “Parentage Equality” bill seeks to redefine parenthood. Parenthood is recognized on its natural biological basis, or in cases of adoption, justice for a child who has suffered loss by providing them with a safe, loving home. This bill redefines it on the basis of a “person’s intent to be a parent of a child.” In doing so, it strips all mention of mothers and fathers from parentage law, replacing these vital familial roles with gender-erased language.
Finally, and most concerning, under H.4672, Massachusetts would allow for commercial surrogacy both in cases wherein the woman carrying the child is genetically unrelated to the child and in cases where she is exchanging her biological child for money.
The ‘Parentage Equality’ Act Legalizes baby-selling
Surrogacy is an inherently exploitative practice. It commodifies women and treats children as products. This specific bill enables particularly extreme arrangements. Most commercial surrogacy laws and surrogacy agencies restrict contracts to cases where the woman carrying the child is not genetically related to the child. Under genetic surrogacy arrangements, sanctioned by this bill, a woman would be allowed to accept money in exchange for her biological child.
In any other circumstance, if a woman accepts money in exchange for handing over her parental claim on her child, she has engaged in baby-selling. Under this bill, she can do exactly that if she has secured a valid surrogacy contract, even if she makes the arrangement with the purchasing parents after she has become pregnant, providing the contract is validated before the child is born.
Under H. 4672, the following would be perfectly legal: a woman undergoes the physical and mental health screenings required to become a surrogate, becomes pregnant via sperm from a sperm bank, and then posts to a surrogacy forum or social media group that she is not only available as a surrogate but already pregnant.
She could then choose to “match” with the couple willing to pay the highest “payment of consideration,” essentially auctioning off her child. As long as the surrogacy agreement meets the requirements outlined in the bill, it could be validated by a court and viewed as not only permissible but legally binding. However, if that same woman became pregnant and decided to make an agreement with a couple to adopt her child, while insisting that she be paid for placing her child with them, she would be prosecuted for baby selling.
The differences between these two scenarios are semantic, yet one would not only be legal and praised as “compassionate family building,” but, should she hand the baby over to a same-sex couple, a step towards ending discrimination. By contrast, the other case would be derided as child trafficking, despite effectually producing the same result.
No matter how much semantic gymnastics surrogacy proponents use, accepting money in exchange for a child is always wrong.
Surrogacy Laws Have a History of Abuse
Before naysayers object that the above scenario sounds far-fetched, we have already seen the sale of children take place under the mantle of surrogacy. In 2011, three California women were convicted of running an illegal baby-selling ring under the guise of a surrogacy agency.
While the women did break California’s surrogacy laws, the existence of legal surrogacy in California enabled them to operate undetected for years. As Dr. David Smolin has pointed out, this case would not have been possible without California’s surrogacy law permitting the names of unrelated adults to be listed on a child’s birth certificate without any adoption procedure.
One of the most critical aspects of the scandal was that the women running the baby-selling ring filed fraudulent court documents saying that the agreements had been secured prior to pregnancy. The FBI’s statement on the case reiterated that a surrogacy agreement must be in place before beginning surrogacy. Imagine how bad actors could exploit a law that allows surrogacy agreements after the pregnancy has begun.
Potential for Money in Exchange for Sex
All the more troubling, Section 28N(d) of the bill addresses the scenario in which a child of surrogacy is alleged to have been conceived not through assisted reproduction, but by natural means. In this case, the court would order a genetic test to determine the parentage of a child. However, the bill states:
[I]f the second genetic source is an intended parent, the court, in its sole discretion, may determine parentage under sections 1 through 27 of this chapter. Unless the genetic surrogacy agreement provides otherwise, the genetic surrogate is not entitled to any non-expense related compensation paid for acting as a surrogate if the child was not conceived by assisted reproduction. [Emphasis added.]
In other words, at the discretion of the courts, a surrogacy agreement could be considered valid in cases where a woman agrees to conceive the child naturally with the intended father—that is, by having sex with him. By stipulating that “unless the genetic surrogacy agreement provides otherwise,” the bill leaves open the possibility of a surrogate being paid beyond expense-related compensation in this scenario.
That’s to say, this bill could allow a woman to accept money in exchange for sex as long as she conceives and then relinquishes her parental rights so the father could raise the child—thus combining both prostitution and child trafficking in one terrible clause.
What further abuses could this bill enable? Forced surrogacy is not a hypothetical concern. Yet unseen exploitation of both women and children could occur so long as the flimsy requirements for a surrogacy agreement are met.
Women and children are not commodities. Children have a right to be born free, not bought and sold. No amount of saccharine wording can mask the fact that the “Parentage Equality” bill monetizes women’s bodies and turns children into products. The women and children of Massachusetts deserve better.
