Five years ago Connecting Hearts adoption agency asked me and my wife to evaluate a young married couple’s candidacy for adoption. We were happy to provide the reference. When asked, “Do you feel comfortable in recommending them as adoptive parents?” We replied, “Absolutely, with no hesitation whatsoever.”
It was not the first time that I had received a similar request. Wyoming adoption law requires that a court find the adoptive parents to be fit. In this process, adoptive parents regularly ask their pastor to be involved. Such requests come with a huge responsibility.
Recommendations for adoption must not simply be rubber-stamped to accommodate the feelings of the couple. They require that we think about the child first. This helpless child depends on an honest process to protect and defend her from a placement that could do permanent harm.
Substance abuse, domestic violence and other factors may require a denial. That child will one day grow up and will ask, “why would you knowingly recommend that I be put into an abusive home?” Imagine stammering for answers if you were the one responsible.
While home evaluations and parental fitness are required by law for almost all of Wyoming’s children, the letter I received five years ago was profoundly different. Since they are frozen embryos, they are not legally protected under Wyoming law. Their genetic parents and “intended parents” are protected by contract law, but the children themselves are not protected by adoption courts.
Connecting Hearts, and the parents who seek their help, recognize the injustice of Wyoming’s laws and voluntarily go above and beyond the law in order to look out for the best interests of these children. People desiring to buy embryonic children without their best interest in mind are free to do so.
In fact, Wyoming does nothing to restrict the trafficking of children created by in vitro fertilization. There is, however, one speed bump: once these children are implanted in a mother’s womb, W.S. 14-2-906 recognizes and protects the parent-child relationship. Now, even that protection is about to go away.
Last Monday, HB 73 “Birth certificates-gestational agreements,” was signed into law. This changes W.S. 14-2-901 to exclude embryonic children from current legal protections if they are implanted under a “gestational agreement.” In that case, their mother is not recognized as their mother, and they remain the objects of a legal contract up to and after birth.
In 2008 Tim Pawlenty, then governor of Minnesota, vetoed a similar bill called the Surrogacy Gestational Bill. Pawlenty’s final paragraph addressed the children. “The bill also fails in any manner to recognize or protect the life and rights of the unborn child. The unborn child is treated throughout the bill as a chattel, the rights over which are set and enforced under the terms of a contract. Indeed, if a dispute arises under the contract or a breach occurs, the courts are prevented from applying the normal ‘best interests of the child’ standard for resolving the dispute.”
HB 73, which will go into effect on July 1, has all the same deficiencies of the legislation that Pawlenty vetoed over a decade ago. It also harms the surrogate women in various ways.
First, “This bill expressly permits the hiring of women to serve as surrogate mothers. Compensation is not limited in any manner to the payment of expenses related to the pregnancy.” Wyoming’s senate amendment, intended to prevent this harm, lacks an enforcement mechanism.
Second, the bill was “written primarily to protect the interests of intended parents. It does not create strong protections for the surrogate mother.”
Third, it “does not provide sufficient control to remain with the surrogate mother through the pregnancy.” Should she determine that continuation of the gestational agreement would harm the child or herself, she is powerless to withdraw consent.
Fourth, “the bill fails to specifically grant the surrogate mother the right to refuse a request by the intended parents to terminate the pregnancy.”
And fifth, “allows enforcement of contracts that allow the intended parents to restrict the surrogate mother's activities.”
It was disappointing to watch Wyoming’s legislature debate the bill. Much stress was placed on the good intentions of the bill. But floor speeches made clear that few legislators even considered the objections that Pawlenty outlined. Intentions are one thing. But the actual language of the bill permits many harmful, unintended consequences.
Every child born under its “gestational agreements” will be separated from his or her mother on the day of its birth. Every surrogate mother will be stripped of any parental rights to advocate for the best interests of the child—or for herself. And nobody involved in the process will ever have to meet even the minimum standards of Wyoming’s adoption law.
Let’s hope that next year’s legislature makes some sorely needed corrections.
Also published in the Wyoming Tribune Eagle, April 9, 2021.
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