The friends and family plan would still work….

This past Saturday I had the honor of moderating the SD Tea Party’s Legislative Lunch.  Rep Roger Hunt was one of the six legislators present….and he’d had a hard week at the hands of the Argus and my friend Greg Belfrage on KELO-AM…so I asked him what he was thinking when he proposed HB 1218 — which would make surrogacy contracts unenforceable.  The Argus screamed from it’s editorial page that this was really an anti-gay and anti-family bill.

Rep Hunt said the bill is aimed at preventing trafficking in human lives and exploiting women and would NOT impact family/friend surrogacy as those arrangements don’t end up in court.  The other interesting fact about HB 1218 — it’s based on existing SD law on adoptions.

In talking with a lawyer about this issue — I was told this is a very murky and complicated area of law….so why not clarify it?  Why not use current law as a roadmap?  Why not take a stand against selling babies or exploiting poor women….those most vulnerable to a “rent a womb” type of business?  It may not be a big issue in SD — but why should we wait until it’s a problem.

Again — according to Rep Hunt — this bill would not stop the Arlette Schweitzers of the world (the Aberdeen grandma who carried her own grandchilden for her daughter).  The purpose is protecting birth mother and child from commercial surrogacy not the friends and family plan.  We don’t sell babies in SD — that’s a good thing.

Rep Hunt is unsure whether the bill will make it out of the committee because of the negative press it’s received.  Roger is a favorite “demon” of the Argus Leader and the left because he is a very outspoken conservative.  I know him to be a good man with good intentions.

44 Replies to “The friends and family plan would still work….”

  1. caheidelberger

    Nice try at deflecting criticism to the press and away from the bad legislation itself. HB 1218 pretty plainly prohibits surrogate mother contracts, written or oral. It bans doctors from doing the insemination or embryo transfer. It felonizes anyone associated with a surrogacy deal. Once again, Roger Hunt doesn’t believe women are capable of making their own choices about pregnancy.

    1. Kristi Golden

      Cory — it does give the mother the primary rights regarding her child. That fact would negate your charge that it takes the decision away from women. It does make it a felony for any one associated with commercial surrogacy — not friends/family arrangements.

  2. Troy Jones

    I’m not a lawyer so much of what I say is probably ignorant. But I can’t help myself.

    When I read the article I had a number of questions:

    Can I as a parent enter into a contract to give my parental rights to another when my daughter is 15? 10? 5?
    Is there a reason why at birth this transfer is any different?
    Is there a compelling interest in the state reviewing this transfer for the protection of the my child?
    Why is new-born transfer not subject to the same procedures and protections for the child for older children?

    I noticed that the hue and cry to Hunt’s bill not answer these questions but they didn’t even seem to contemplate them. Furthermore, the reaction seemed eerily similar to the idea unborn child is the chattel of the parent to be dealt with as the parent chooses exept in this case we are talking about a new born.

    Representative Hunt’s bill seems to be an intent to make the legal treatment of the transfer of new born babies subject to the same procedures and protections afforded older children.

    1. Kristi Golden

      Good thoughtful questions Troy. As I understand it — Rep. Hunt is doing his best to have our “transfer” of children (adoption and surrogacy) laws be consistent….and protective of the child and the birth mother.

  3. yoyoyoyoyo

    “It may not be a big issue in SD ? but why should we wait until it?s a problem.”

    Addressing problems that arent acually there…doesnt seem like conservative values at work to me.

      1. yoyoyoyoyo

        just seems like there are enough things that are issues that need adressing now, than to deal with possible issues in the future. Problems in other states might not ever be SoDaks problems. Take it to the extreme will HB XXXXX – A bill to require the registration of all extra terrestrial lifeforms and their intergalaxy transportation vessels.

    1. Troy Jones

      Why is it illegal to get paid to transfer the parental rights of a teen daughter? Human trafficking.

      Why are adoptions regulated by the state? Human trafficking and to ensure the child’s safety and interests are protected.

      Then ask yourself this question: If a mother initially desires to give up her rights to the baby she carried but changes her mind, should she be forced to break the parental bond in preference to a private contract or is the parental bond and corresponding rights preferred over a private financial contract?

      1. DDC

        Troy, that’s absolutely ridiculous to compare someone who is a surrogate mother to someone participating in human trafficking. That’s like saying that you’re guilty of statutory rape because your wife was once under the legal age of consent.

        Someone paying another human being to carry their child isn’t comparable to human trafficking in any way shape or form. It’s not immoral for someone to pay a woman to carry their child to term if they cannot do it themselves. It also is not immoral for that person to pay the woman to carry their child to term. It is also perfectly reasonable for the person paying the woman (and most likely paying her pre-natal care) to expect to receive the child that the woman is carrying at the end of the pregnancy.

        The child that the woman would be carrying would be the product of the person paying her’s genetic material, not her own. The woman was basically a babysitter for nine months while the child was in the womb.

  4. I Wanna Be Elected. . . Alice

    Those who oppose, see that language that would afford the same protections regarding human trafficking of the born to the unborn contemplate an errosion of the differntiation that keeps abortion legal. If this accomplished nothing more than creating an affirmation of the unborn as having possession of rights and protections identical to the born, it is worthy of adoption(not an accidental word)

    1. Troy Jones

      Forbid them or forbid them from being enforced in court, especially with regard to forcing a mother who changes her mind? There is a very significant distinction.

    2. Hunt 4 the Red October

      Despite what Schonebeck says, you schooled them on this Cory. And as you know the bill went down in flames. Apparently the legislative commitees are tiring of Hunt’s single mindedness. Unfortunately for us he’s kinda like a virus, and just won’t go away.

  5. Lee Schoenbeck

    Corey – with all do respect to Tom – he has one opinion and there are 1500 attorneys in the state – you can probably get a few dozen thougthful opinions. I don’t have a knife in this fight, but the proponnents above have made some very thoughtful comments. Being the debate judge you are, you know that you loose this round so far. I’d be interested to hear some thoughtful comments from you on why this is bad policy.

  6. Elais

    I understand this bill originated from a situation where a surrogacy was being provided to a gay couple. Since South Dakota is one of the worst anti-gay states in the country, it is no surprise that yet another anti-gay bill gets brought up before the legislature.

    Hunt and others should be more trasparent and simply flat out admit this bill was intended to deny same-sex couples the right to a family.

    It seems odd to me that apparently bearing your own grandchildren is considered natural and must be supported at all costs.

  7. caheidelberger

    Thoughtful comments: I will cede the floor to Kristi Moen, who is carrying her second surrogate child right now and asked the committee very convincingly not to turn her into a felon. Listen to her testimony online. I imagine they’ll feature her on Statehouse on SDPB tonight, too.

  8. grudznick

    I hope this Mr. Hunt fellow got himself slapped verbally around and somebody got him a bottle of dandruff shampoo and whispered in his ear to not wear dark suits.

  9. Hunt 4 the Red October

    So let me get this straight, a woman can become a surrogate Mom, receive healthcare and thousands of dollars in support for the adopting parents, then opt out because of this new law? Sounds like Mr. Hunt ahs once again failed to look at the unintended consequences one of his ill advised bills presents.

    I hate to give up entirely on the guy but I really think he’s become a religious zealot who will stop at nothing to reach his personal goal of outlawing all abortions in S.D. Why else would he fail to see the U.S. Supreme Court will surely strike down any of his pretextual bills making it into law, if the people fo S.D. don’t refer an defeat them first.

  10. PlanningStudent

    “…this bill was intended to deny same-sex couples the right to a family.”

    I would submit to you that no one has a right to a family, gay or straight.

    Rights are bestowed by the creator and they limit the scope of government activity.

    Hunt and unequivocally believes in and creates legislation that supports the right to life of children, born and unborn. He has never hidden this, so why do you act so snarky and witty tripping over each other to be the first to remind us of his beliefs..?

    The right to abortion was created by government. Right to life was bestowed by God.

    One more thing, enough of this ‘focus on the budget’ and ‘no texting and smoking while budgeting’ narrative. Do you know how budgeting and appropriations and committees and floor debate works? The budget is the the difficult task of the few who happen to be on appropriations. Do you want all other committees to sit idly by waiting for appropriations works out the budget? Maybe you would have them join the discussion, but then that defeats the point of a committee separated from floor debate..

      1. PlanningStudent

        I would have to completely disagree. Abortion as a right was created by the United States Supreme Court in Roe V Wade in 1973. Just because modern medicine got really good at something and made it affordable doesn’t mean it then becomes a right. I don’t have a right to a heart surgery any more than I have a right to an abortion.

        The rights that we come into this world with are known as negative rights and limit the actions people (including the government) can take against us.

        The rights that our government has been creating out of thin air for sometime now are positive rights. Positive rights are those that force other people to take or accept certain actions or behavior. It may even require them to take action against their belief system. Like if a Catholic hospital were forced to perform abortions.

        Or, for example even though a doctor may be willing to terminate the pregnancy of a mother who also wants a abortion; the government now forces an unborn child to accept that decision and any future family it may have had to accept that decision including a father out there somewhere.

  11. Elais

    PlanningStudent

    Why are there so many people fighting to defend the ‘traditional family’? By your own arguement, no one has a right to a family, ‘traditional’ or otherwise.

    If Hunt believes that children have the right to life, regardless why should it make any difference what situation that child is born into? Gay, straight or whatever?

  12. PlanningStudent

    What on Earth does fighting for the ‘traditional family’ have to do with your assertion that people have a right to a family. Apples and rocks as far as I’m concerned. The traditional family argument has nothing to do with a ‘right’ to a family.

    By the laws of nature a child cannot be born to a gay couple. Two men or two women cannot make a child last time a checked. So artificial insemination aside all children are born to a mother and a father.

  13. Troy Jones

    DDC: You are missing my point. We have laws that regulate adoptions to insure the interests of the child are being protected and one of the abuses is human trafficking. There are others such as the parents are unfit. I’m at a loss why surrogates and their advocates are unwilling to be subject to the same scrutiny. There are also laws which prevent one from “selling” their child for a multitude of reasons including human traficking.

    Keep in mind, a form of human trafficking is where someone with money who wants a child (even for good and wholesome reasons) takes advantage of the economic condition of one who is in dire need of money. For instance, as I understand it, the law forbids financial consideration for a parent to relinquish their parental righs. Yes they can freely enter the adoption process and the adoptee parents must subject themself to the process but it financial consideration is forbidden as selling of human beings has been outlawed since abolition.

    Essentially, every child from conception until they are 18 are protected by adoptions regulations. The only difference is surragacy is about a contract entered into prior to conception. My fundamental question is since the same potential abuses including selling of human beings can apply with surrogacy, why shouldn’t surragacy recieve the same scrutiny to insure the interests of the child are protected?

    The moving testimony of Kristi Moen can apply to so many good and wholesome adoptions but it doesn’t stop us from having regulations for adoptions.

    Maybe there are problems with Hunt’s bill (I’m not a lawyer and even know less about family/adoption law) but it raises other matters that need to be resolved such as what are the child’s rights at majority to seek out their birth mother or father and what protections of confidence should be extended to the birth mother or father. These are complex issues which are continually being debated and tweaked. Surrogacy is a relatively new option for parenting for which many issues need to be resolved. Like Hunt’s bill or not, he is raising an issue for discussion in the light of day. Failure to discuss and resolve these issues are not responsible answers.

    Sidenote: I asked some fundamental questions for which as far as I can tell, the opponents of Hunt’s bill refuse to address. Furthermore, they rely on emotional testimony that avoids the questions. And to make a mockery of everything, today’s article in the Argus even had to point out Kristi Moen “took a vacation day” to testimony. Talk about displaying inappropriate sympathy to the witness and her views.

    It reminds me of person who testified years ago and said the samething to deflect the hard questions. Famous curmudgeon State Senator Bill Grams said to a witness essentially: “Madame, you are the fifteenth citizen here today. They all took vacation day’s to be here. I’m here in my retirement when I should be sitting in my rocking chair. Several of these legislator’s have used up their vacations and are on leave without pay. You will either answer my questions or you can go back to your job.”

    I’m not saying this was Moen’s intent on saying she was on vacation. I think she was just trying to use it to say this was an important matter to her. But, the Argus gave more words to tell us she was using a vacation day than to discuss the underlying issue why surrogacy might need to be subject to regulation and oversight for protection of the child.

  14. DDC

    Troy,

    I didn’t even listen to Kristi Moen’s testimony. I didn’t read the Argus story. I can assure you that her story has had no affect on my thought about surrogacy.

    This law makes it illegal to enter into a surrogacy contract. It voids existing legal contracts. If it were simply to ensure that the best interests of the child are taken into account, I wouldn’t be quite as dead set against it. It takes away all of the rights of the surrogate and the social parents. It has nothing to do with the best interests of the child.

    It is the government’s job to enforce legal contracts, not subvert them.

    I have a few questions for you to make you think a little more about this subject.

    If my wife and I were to have an embryo that was created with her egg and my sperm implanted into a surrogate, how can she have the right to keep that child after it is born? Does her carrying that child to term trump our rights as the biological parents?

    Let’s say that my sperm was used to inseminate the surrogate. Does the fact that it was her egg and she carried the child trump my rights as the biological father?

    What if the surrogate decides two months into the pregnancy that she doesn’t want to carry the child. Should she be allowed to abort the child?

    Should my wife and I be forced to pay the surrogate to care for the child when we aren’t allowed to have custody of the child?

    How do you</b know what is best for the child?

    As for the wonderful regulations that we have on adoptions to protect the child:

    Is it better for a child to be born to someone that doesn’t have the means to take care of that child, or would it be better if someone that wants that child to compensate that person in order to have parental rights for that child?

    Is it better for someone to have an abortion or is it better for that person to be paid to carry the child to term and be paid to relinquish their parental rights to someone that would care for and love that child?

    Or should we just throw the child into foster homes?

    Or is it better if that child is aborted?

    Think of how much better off we’d be if the pro-life movement could pay mothers to carry their child to term and compensate them for giving their child to a loving family instead of spending all that money trying to get abortion bans and gay marriage bans enacted. If it truly is about saving the life of the unborn, this would be a much better way to spend that money than trying to get laws passed that will be fought in the courts.

    I’m not talking about some kind of eminent domain for children, I’m talking about two willing parties coming to an agreement and what they both think is best for the child. They are in the best position to make that decision, not the state.

    You spent a lot of time complaining about the Argus talking about “vacation days” and how that frames the subject. Well, you’re doing the same thing by using the term “human trafficking”. You’re trying to make it sound like these kids are being sold into slavery or being used as sex slaves. That’s even worse than what the Argus is doing. You’re better than that, Troy.

  15. Troy Jones

    DDC, great questions. And that is my point. We have adoption laws which answer (rightly or wrongly for which people can disagree on the answer but we have legal answers. There is virtually none with regard to surrogacy.

    And you are absolutely right a primary purpose of the justice system is to “enforce legal contracts, not subvert them.” But, the operative word is “legal.” The courts will not enforce a contract to sell another person because selling another person is illegal. The legislature has virtually no laws defining what is legal with regard to surrogacy.

    But let me go through your questions, if I may. Surrogacy raises so many issues which never applied before. Just as DNA testing raised issues about what rights the biological father to a child conceived in extramarital sex were vs. the husband of the mother. Perfectly or imperfectly, the legislature has wrestled with the issues and given us answers.

    You are right: We need to know the following

    1) Does a birth mother’s rights to the child trump the genetic parents rights? The question should be answered with regard to whether she can abort the baby or keep the baby.

    2) Regarding your question on the rights of the sperm donor vs. the egg provider, I think the current law is the egg provider’s rights have preference. Don’t know for sure.

    3) And, then if the surrogate chooses to keep the child, what obligations can be required of the genetic parents? Keep in mind the standard with regard to children born out of wedlock is biological fathers can be made financially responsible for the care of the child up until they are 18.

    4) Your question of how I know what is best for the child? Same as with adoptions, I don’t but I support the concept we have adoption regulations and professionals whose job it is to make the best possible determination they can.

    5) Is it better for a child to be born to someone that doesn?t have the means to take care of that child, or would it be better if someone that wants that child to compensate that person in order to have parental rights for that child? Alot to this question but it sounds like you think the State should have the right to say to a parent “you can’t take care of this child, here is money, we are giving your child to a rich family.” This can’t be what you intend to say so what is your question again?

    6) Is it better for someone to have an abortion or is it better for that person to be paid to carry the child to term and be paid to relinquish their parental rights to someone that would care for and love that child? Again, alot to this question. No, it is not better for the mother to have an abortion. Yes, it is better for mother’s to get help to carry the baby to term (for which there are numerous government and private charities who will do this. As far as I know, nobody is ever denied from at least the private charities I know about.) But again, you again reference the “paid” part which sounds to like sale of a human being.

    7) Or should we just throw the child into foster homes? We don’t allow adoptions to go forward where it is determined foster care is better. Shouldn’t we ask the same question here? Just because they desire a baby prior to conception and are willing to pay for it doesn’t transcend the validity of whether

    DDC, there are probably a bunch of other questions we can’t even think up right not. The point is the current situation gives no guidance on the answers. It is totally unsettled.

    On final thing to think about. Contracts are obligations of one party to another. There is a host of “contracts” which appear valid but are held to be unenforceable because of certain other violations to public policy or infringement of fundamental rights. What do you think of this one? A woman who owes someone a lot of money is told “If you bear a child for us, we’ll forgive your debt?” Should that be enforceable if she doesn’t live up to her end of it? If that same woman would agree to have sex with a guy for a year and chooses not to do it after awhile, despite there being a written contract, not only would a court not enforce the contract to have sex but they’d likely forgive the debt. It is a legitimate question whether or not she should be forced to give up her child, notwithstanding there being a written contract.

    Roger Hunt has raised the issue of surrogacy and the total lack of clarity of what is illegal, what is illegal, and whether or not some things currently “legal” might be illegal (contrary to other legal principles) or should be illegal.

  16. PlanningStudent

    DDC a shorter answer to all your questions is that those aren’t questions that should ever be asked. Questions about who has which right to the child during surrogacy are not questions that need answering because it is human trafficking. Plane and simple the mother is the person who brings a child to term and she doesn’t have the right in Hunts view to and many others to either terminate that unborn child or sell the born child. And Hunt makes the distinction between commercial surrogacy and that done within the family where a mother might have a daughters baby. This isn’t commercial surrogacy because of the already established familial relationship.

    I can understand how some might disagree with this point of view but to treat it as some extremest view that you can’t even respect someone else for holding blows my mind. Yes some people in all instances believe that selling another human is and/or should be defined as human trafficking and yes even when the intentions of the the adults involved 100% genuine.

    1. DDC

      Why shouldn’t those questions be asked? Why should surrogacy be illegal?

      The only distinction the law makes between commercial surrogacy and non-commercial is that the the intended parent(s) would not be subject to criminal penalties. They would still be civil penalties, and very stiff ones:

      “Section 10. The intended parent in a surrogacy arrangement which is not a commercial surrogacy arrangement and who is not in violation of the provisions of any of sections 3, 4, 5 and 6 of this Act is not guilty of a crime, but is subject to civil penalties of not less than thirty

      thousand dollars and not more than fifty thousand dollars for a first offense, and not less than fifty thousand dollars and not more than eighty thousand dollars for a second offense. An intended parent who is guilty of a third offense is guilty of a Class 1 misdemeanor.”

      1. PlanningStudent

        Clearly I was wrong on the distinction between commercial and non-commercial surrogacy but it doesn’t disappoint me that I was wrong. It makes the point about human life being sacred more consistent and in turn stronger.

  17. DDC

    Troy,

    That’s the problem with this bill. It answers none of those questions. It says “FOR AN ACT ENTITLED, An Act to prohibit surrogate mother contracts, to prohibit enforcement of such arrangements, and to establish standards to award custody of children born as a result of such arrangements…”

    It takes away the legal protection of contracts. If this passes, it will effectively outlaw surrogacy. It takes away the rights of people to enter into mutually beneficial contracts.

    Again, if it were simply a clarification of laws or the setting of standards for such contracts, that would be one thing. It isn’t.

    This bill does not protect surrogate mothers from fraud or unlawful coercion, it makes them felons.

    And no, I’m not advocating that the state get involved in determining whether or not a woman can take care of a child in question 5 (although the state already does do just that). I’m saying that if a woman were to make that determination on her own and someone is willing to pay her to give up her parental rights to that child, they should be allowed to do so. It would be a much better option than for that child to either be aborted or eventually be giving up for adoption (or the state to take the child away). I would never advocate for the state to take away someone’s child and give it to someone else (whether or not their is money involved).

    We’re not talking about the selling of human beings. We’re talking about individuals coming to an agreement over what they believe is in the best interests of the child. Again, they are in the best position to make that determination and all parties involved should have legal protection in that situation.

    Lastly, surrogacy will still happen if this passes. The only thing that will happen is that in the rare case that something does go wrong, the parties involved will have no recourse to protect their rights.

      1. PlanningStudent

        Surrogacy will always happen, kind of like abortion will always happen so lets provide ‘safe access.’ People will always do drugs, lets provide access to clean needles and uncut cocaine, same argument in my mind. Just because someone will continue to do an activity that is wrong doesn’t mean that the law should accommodate him or her.

        Our rights are unalienable (see Declaration of Independence). Do you know what that means, unalienable? You can’t give them up, you can’t sell them. No more than you can sell another human being.

        1. DDC

          Yep, I know what unalienable means. Apparently I know a lot more about it than you do.

          Surrogacy has nothing to do with abortion or drug usage. Keep throwing up strawmen, I’ve got all day.

          I believe that human life is sacred and that life begins at conception, but I can’t even imagine how surrogacy runs afoul of that concept.

          Why should surrogacy be illegal?

          What right is being violated?

    1. Troy Jones

      Much of what you say is true and in some cases I disagree with your read of the bill. Maybe you’re a family lawyer and your interpretation is right. But, for instance my read of the bill is private contracts will not be enforced telling parties to enter in them at your own risk. Doesn’t make them “illegal” just enforceable. And I think this is a good thing when we are talking about innocent babies and not property. We need clarity and until we have clarity, I’d rather make contracts unenforceable vs. the current haphazard situation we have.

      Or maybe neither of can interpret the bill accurately.

  18. DDC

    Haha Troy, thanks for the clarification. 🙂 I can’t follow these threaded comments to save my life, either.

    I’m not a family lawyer (or any other kind of lawyer), but I can read plain english. The bill certainly would have made it a felony (or provided for civil penalties, a minimum of $30k) to enter into a surrogacy contract. There really isn’t any other way to read it. It would have outlawed all surrogacy contracts and you’d have to be a complete fool to enter into a surrogacy agreement without legal protection. Do a google search on “surrogacy fraud” or “surrogacy blackmail” and you’ll see what I’m talking about.

    A law saying that the state will refuse to enforce a contract between consenting adults is a bad law. I’m glad it was defeated.

  19. PlanningStudent

    “A law saying that the state will refuse to enforce a contract between consenting adults is a bad law.”

    We are not just talking about consenting adults and to keep saying so baffles me. You’re leaving out the child that is being sold… Hunt didn’t want the state to be a party to the sell of a child. There is no good way or clear ethical decision in cases where we are talking about selling children.

    The fact that these situations are rife with fraud and the like is just further evidence that we should outlaw the entire practice.