Is The Surrogacy Broker Really The Bad Guy?

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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.

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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.

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Yet, despite this pro-surrogacy trajectory, one player in the surrogacy equation has received attention as the villain of the story.

The Brokers

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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.

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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In January 2024, Virginia HB110 was introduced with the simple goal of removing the outdated and unused surrogacy broker prohibition contained in Virginia Code §20-165.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.

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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

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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 [email protected].

Topics

Assisted Reproductive Technology (ART), Ellen Trachman, Family Law, Surrogacy, Surrogacy Brokers