Louisiana Surrogacy Bill Passes Amid Controversy

UPDATE: On Gov. John Bel Edwards signed the bill into law. It takes effect August 1, 2016.

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A controversial Louisiana state bill was recently passed without exception by the Louisiana House Committee on Civil Law and Procedure. House Bill 1102, which makes allowances for the protection of gestional surrogacy agreements, must now go before the entire state legislature for final approval. There are no surrogacy laws currently provided for by the state of Louisiana, which recognizes the surrogate mother as the legal parent of the child, requiring that the intended mother go through adoption proceedings.

However, there is substantial disagreement remaining on both sides of the political aisle, reflecting a variety of concerns which hearken back to decades-old issues.

Controversy Concerning LGBT Rights

There are several concerns among progressive organizations in regard to this bill.

HB1102 prohibits the widespread American practice of compensating a surrogate mother for her time, inconvenience, and the long-term health concerns involved with any pregnancy. In other states, where gestational surrogacy is not specifically prohibited, a surrogate mother may expect compensation. The standard base compensation is usually $30,000 throughout the country, which is often paid in monthly installments of $3,000. Additional compensation is offered in increments averaging $5,000 for each child the surrogate mother has successfully carried in previous arrangements.

This amount varies between some agencies. ConceiveAbilities compensates surrogate mothers between $39,450 and $52,450 altogether.

Other concerns among left-leaning organizations include language which identifies intended parents as “a man and a woman.” This language in the new HB1102 surrogacy law would prevent same-sex couples in Louisiana from using gestational surrogacy as a means of starting a family, as would the bill's requirement that both the egg and the sperm come from the intended parents. Professor Andrea Carroll, the Donna W. Lee Professor of Family Law at Louisiana State University, offered expert testimony that the bill's current language might render it unconstitutional. This would be in accordance with the US Supreme Court's 2015 decision recognizing homosexual marriages throughout the US, and striking down individual state prohibitions against them.

The requirement that egg and sperm both come from the intended parents poses other concerns as well. There are medical reasons for requiring the donation of egg or sperm, including the presence of genetically transmissible conditions. In 2011, one of the latest years for which collated information is available, approximately 11% of all assisted reproductive treatments in the United States took advantage of donated eggs. The use of an egg donor also allows for fresh embryos to be used, as opposed to frozen: the best data currently available suggests that fresh embryos are significantly more likely to result in a viable birth.

Controversy Over Discarded Embryos

Ben Clapper, the executive director of the organization Louisiana Right to Life, expresses the most common point of conservative opposition to HB1102.
“Life starts at the embryonic stage, [and] it's human life that must be protected,” Clapper asserts. Many conservative groups in the state are also concerned with gestational surrogacy, as it often involves the creation of multiple embryos, which are then frozen or discarded. Louisiana Right to Life is one of several organizations advocating not only against Louisiana House Bill 1102, but also for the prohibition of gestational surrogacy. The group's view would have a substantial impact on the use of IVF treatment overall, which would in turn have widespread ramifications for a variety of assisted fertility treatments.

Before House Bill 1102

One woman who would have benefited from HB1102 is Louisiana resident Loren McIntyre, who recently shared her story with the Louisiana state legislature. Under Louisiana law, prior to the passing of HB1102, her husband's name was placed on the birth certificate. Because another woman carried her son to term, however, Loren has to go through process of adopting her firstborn son, despite his being 100% genetically her own offspring. Her name will never appear on his birth certificate.

Loren has a medical condition which makes carrying a child to term extremely difficult. Prior to pursuing gestational surrogacy, she and her husband tried IVF treatment unsuccessfully for several years.
The couple encountered additional problems at the first hospital they went to. “They wouldn't even put my husband's name on the birth certificate,” Loren explained, “because my surrogate was already married.”
The couple ended up using another hospital's services, but Loren recalled that it made her surrogate and her surrogate's husband very concerned. “They were very fearful that there were no legal protections in place for them, should my husband and I have decided that we didn't want the baby.” While she assured them that this was never going to be the case, she said she understood where they were coming from as, at the time, Louisiana state law recognized the surrogate as the legal mother of the child.

Current Status of HB1102

This is the second time that a bill containing this exact language was put up for consideration. An identical bill was passed by the full Louisiana state legislature in 2015, but was vetoed by then-governor Bobby Jindal. The current bill still needs to go before the full legislature, before being presented to the current governor, John Bel Edwards, for his approval.

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