Indiana Surrogacy Bill Threatens Women’s Medical Autonomy
The proposed Indiana law strips medical autonomy from surrogate mothers and even allows men to harvest eggs from comatose or brain-dead women.
On January 4, 2022 State Representative Sean Eberhart (R - Indiana) introduced House Bill 1104 (HB1104) to create the Gestational Surrogacy Act (GSA) and the Gamete Donation Act (GDA), which would make changes to state law on surrogacy, as well as egg and sperm donation.
Among other things, both acts would establish guidelines about who the legal parents are of children born under these arrangements, legal requirements for making a valid agreement with a surrogate or egg/sperm donor, and what can be done if there is a breach of a valid agreement. The GSA would also establish support obligations for children born from a surrogate mother.
background on Surrogacy
Surrogacy, which is illegal in almost every country, is the (typically) commercial exploitation of women’s reproductive capacity. Unlike adoption, where it is illegal to compensate mothers for giving up their babies, surrogacy allows those who wish to become parents to commission and buy infants from the “gestational surrogates” (GSs): the woman who conceives, grows, and gives birth to the baby. The so-called “intended parents” are not required to be genetically related to the babies they are purchasing, though they sometimes are.
Legal Changes Due to HB1104
This bill would make several changes to existing law that weaken the women’s medical autonomy during surrogacy. Gestational Surrogacy Agreements (GSAs) must, in order to be valid under Indiana law, require women to do a number of things.
Consult with the “intended parents” about her choice of medical provider(s) during her pregnancy.
Authorize the medical provider(s) to discuss the baby’s health with the “intended parents”
There are also some dangerous provisions that are allowed to be in GSAs, though the law does not require them:
That the mother agrees to undergo all exams, treatments, and fetal monitoring recommended by a doctor for success of the pregnancy. [Note: no exception for health of mother as versus success of the pregnancy.]
That the mother agrees to abstain from activities the “intended parent” or a doctor “reasonably believes to be harmful to the pregnancy and future health of the child,” including smoking, alcohol, drugs, radiation, any other activities “proscribed by a health care provider.”
Note that there is no exception for the health of the mother for either of these provisions.
While the GSA may not require or prohibit the woman to terminate the pregnancy, it does allow the IPs to be reimbursed for medical costs if she does so for any reason other than her life being at risk. GSAs can thus require reimbursement of medical costs if the mother terminates the pregnancy because her health is seriously threatened, unless her condition would result in death.
How these changes Hurt Women
This bill is dehumanizing. The moment a woman becomes pregnant under a GSA, she loses almost all agency, including the right to make medical decisions in her own best interest. She also loses privacy, as “intended parents” have input into and then full access to the mother’s health care providers. You cannot separate fetal health from maternal health - there is almost no way to only give information about the baby. They are inextricably tied together.
The laser focus on the health of the baby, to the total exclusion of the health of the mother when they are in conflict, will have far-reaching effects. The bill requires mothers to have given birth to at least one child prior to becoming a surrogate. What happens if the mother is advised by a health care provider - or the “intended parent” - to take an action that is not in the best interest of her other children? What if her children become covid-positive, and she is told to quarantine from them? She would be in breach of contract for caring for her own sick children.
What if a doctor recommends bed rest, but it would cause serious hardship for the mother? What if they recommend “pelvic rest” - abstaining from sexual activity and/or orgasm - and the woman does not want to be sexually abstinent for months on end? She cannot even speak openly with her doctor on the subject, because her doctor must disclose anything about fetal health to the “intended parents.” What about drugs, vaccinations, medical procedures, and any other choices that affect a pregnant woman’s health? With this bill, the transformation of a woman into just a host body is complete.
The second part of the bill, the Gamete Donation Act (GDA), sets forth various procedural requirements and legal presumptions for the donation of gametes (eggs and sperm). While many of them are problematic, there is a provision that is deeply chilling: The bill allows the spouse or “committed partner” of a dead, brain-dead, comatose, or vegetative individual to request retrieval of the individual’s gametes if there is no prior written directive on the matter. The provision states that there must be clear and convincing evidence the individual “had a strong desire” to have a child with that spouse or partner.
These are just the most concerning parts of the bill from the perspective of women’s rights and welfare, but there is a lot more to unpack - so we encourage those who are interested to read it in full.
