Arkansas Has Become a Magnet for Surrogacy Parenting - Including Gay Surrogacy
Arkansas Surrogacy Law Is Among the Most Liberal in the U. S.
Much More Liberal than New York and European Laws
Arkansas is one of 9 states that "allow gay surrogacy. A growing number of gay and lesbian couples and individuals are turning to the use of surrogate mothers as a means of starting their family! ..."It's becoming quite popular," says the Lesbian & Gay Parenting Resource.1 [But "trafficking in children" is a term a New York Court used in reference to surrogacy contracts like those allowed in Arkansas."]
In fact, it appears that Arkansas has become a magnet for gay surrogacy. The surrogacy law in Arkansas is among the most favorable in the United States, according to the website of Surrogacy Solutions in Sherwood, Arkansas, which advertises, "Most of our clients do not live in Arkansas, and several of our surrogates and egg donors do not live in Arkansas. You are not required to live in Arkansas to form your contract under and take advantage of Arkansas law on surrogacy. In all surrogacy arrangements through Surrogacy Solutions, the contract provides that Arkansas is the place the parties select for the laws to govern, interpret, and enforce the contract." 2 See below for provisions in Arkansas law that makes it attractive to gays and for a link to the law, Act 647 of 1989.
"There is a quiet but thriving network of Arkansas women who have been carrying babies for couples from all over the country and Europe, where surrogacy is illegal...Melissa Brisman, a New Jersey attorney specializing in reproductive law, said about 10 percent of the surrogates her agency uses live in Arkansas," according to Arkansas Democrat Gazette article August 5, 07.3
"Gary Sullivan, a Little Rock fertility lawyer, helps connect surrogates with prospective parents and makes arrangements for necessary court orders," reports the Arkansas Democrat Gazette. Gary Sullivan is described in another article in that paper as gay and as having a daughter by a surrogate parent: "Sullivan and his domestic partner worked with two egg donors and two surrogates before Leslie-Joe was born....Both surrogates were single. ) Can we assume that the prospective parents with whom Sullivan works are probably gay? 4
On the other hand, "In 1992, New York's legislature declared surrogate parenting contracts void, unenforceable and contrary to public policy... because surrogacy contracts have been interpreted to involve, in the words of one New York court, the 'trafficking in children.'"5
And in Europe, according to the Department of Obstetrics, Cambridge University, in England, "Surrogacy has been described as an emotional and ethical minefield that is putting human nature under pressure. In most countries it is banned, in many others it is not practiced, and only the UK and Israel openly allow for surrogacy. 6 But in England and Israel the surrogate mother cannot be paid for her services] 7
Among the arguments against surrogacy parenting given in a New York Times article are the following: 8
· "Critics of surrogacy say their primary objection is that a baby is being "sold" for a $10,000-to-$20,000 fee. 'The reality is that money is being exchanged for a child,' said Assemblywoman Helene Weinstein, Democrat of Brooklyn, who sponsored the bill in the Assembly." [Fees often run up to $30,000 now]
· "Those who oppose surrogacy say that the fee is the main incentive for most surrogates. 'If someone hadn't paid her to do this she wouldn't have done it,' Pat Mounce said of her daughter Denise, who died of pregnancy complications five years ago while in the eighth month of a surrogate pregnancy. Her daughter, Mrs. Mounce said, was $8,000 in debt and saw surrogacy as 'her only way out.'"
· "'I understand that families are desperate for children,' Mrs. Mounce said, but that doesn't make this right. People who need hearts are desperate. So are people who need lung transplants, liver transplants. We don't allow people to sell their organs. Part of life is learning to live without. I have to learn to live without Denise.'"
· "Surrogacy, opponents say, is tantamount to exploitation of women and children. They question whether a woman can give birth to a child and not suffer at all when relinquishing custody and they question the effect on the children when they are old enough to understand the circumstances of their birth.
· "Patricia Foster was five months into a surrogate pregnancy in 1986, when she decided she simply could not 'give my baby away.' An unsuccessful fight in the Michigan courts cost her $100,000, she says, and even after a judge rescinded her visitation, she could not keep away from her son." (See footnote 8 for these quotes)
But conservative Arkansas passed a law, Act 647, way back in 1989, (anyone remember who was Governor that time) that Arkansas Attorney Gary Sullivan describes in the following quotes in an article for a national surrogacy organization 9
· "The statutes, codified at Arkansas Code Annotated Section 9-10-201 et seq., are monumental deviations from the more familiar laws around the country."
· "Everyone knows that Arkansas gave the country its 42nd President. But not everyone knows that Arkansas enacted the country's most favorable surrogacy statutes long before many people had ever heard of Bill Clinton." [Isn't Sullivan implying that Clinton had something to do with this even before he became President?]
· "Not commonly considered to be progressive in any area of the law, especially reproductive issues, the Arkansas Legislature surprisingly enacted the first legislation that finally recognizes and supports the intent of the parties to a surrogacy contract."
· "The use of an Arkansas-based surrogacy service can be beneficial to the parties regardless of their states of residence when the surrogacy contract is drawn and executed under the laws of Arkansas. .. one attorney-operated surrogate mother service offering surrogate candidates from every region of the country."
· "The Land of Opportunity" was the state's motto for many years. For those seeking parenthood through surrogacy, Arkansas is still the land of opportunity, legally speaking."
Sullivan and other documents points out these favorable provisions of Arkansas law.
· According to Arkansas Attorney Gary Sullivan, "The Arkansas law has two major advantages not found elsewhere. First, as noted above, the marital status of the surrogate is irrelevant…The statutes in other states were enacted for the benefit of married couples seeking to conceive with donor semen when the husband was infertile." Sullivan explains that in Arkansas (as opposed to other states) no adoption is necessary after the birth of the child to the surrogate parent. "The birth certificate lists the parents as those intended in the surrogacy contract." As pointed out in other writings, in Arkansas the surrogate mother has no chance to change her mind about the decision and procedures either during the pregnancy or for a time period after the pregnancy as is the case in adoption. 11.
In fact, in New York Karen K. Peters, a family court judge from Kingston, N.Y., said several aspects of surrogacy legislation "were inconsistent with state adoption laws. State law, for example, does not allow an agreement to relinquish a child to be enforced before the birth of the child. At the same time, a mother who agreed to give her child up for adoption could change her mind up to several weeks after relinquishing the child and still be entitled to a court hearing on the matter." 12
"In addition, Judge Peters said it would be 'legally offensive and philosophically inconsistent' to allow payment to surrogate mothers and not to mothers who give their children up for adoption." 13
Isn't it true that buying and selling children has always been of such a depraved and immoral nature that society has never considered allowing it? We buy and sell property like cars and dogs but not children. Then why has Arkansas, the center of the Bible belt, provided the nation (not just Arkansas) with a means for "the trafficking of children", thus becoming the Land of Opportunity for Gay Surrogacy?
We are sure the law was enacted by bureaucrats out of touch with the values of the people. Most of us know by now how laws are slipped through by powerful liberal legislators and written in such simple terms much like the ERA amendment (just as Arkansas surrogacy law is written) to disarm the innocent (and often naïve) legislators. Then the media is silent about the matter, and the law permeates the culture while no one in Arkansas even knows about it.
Surely, we can ask our legislator to rectify this Arkansas surrogacy law and pass a law as conservative as that of New York and England. Perhaps constituents should ask Presidential Candidate Hillary Clinton which law she supports, New York surrogacy law or that of Arkansas. We are sure she is familiar with the Arkansas law. We see her hand writing all over it. See footnote 14 to find the actual law. It is also pasted below the footnotes on this article.
"Under New York's law, which Gov. Mario M. Cuomo signed Wednesday,  a woman could legally carry a baby for another couple, but the payment to the broker and to the woman would be illegal and the contract would not have legal standing in court. Only the payment of medical expenses would be allowed. A broker who accepts a fee faces a fine of $10,000 for a first offense. A couple who pays the fee and a surrogate who accepts it face $500 fines. 15
"The purpose was to eliminate the practice of commercial surrogacy," said Anna Maria Cugliari, a spokesman for the Governor's Task Force on Life and the Law, which drafted the basic legislation. "Under the new law it will be treated like adoption. The unanimous decision of the task force was that you shouldn't treat these arrangements as you would a consumer transaction." 16
As far as we could determine, this law still stands in New York. See this footnote for update in 2004. 17
Women Action Group
Footnotes and Documentation
1. Arkansas is one of 9 states that allow gay surrogacy in web article entitled "Surrogacy for Gay Parents" - http://www.ourworldtoo.com/lesbian-gay-parenting-info/gay-surrogacy/gay-surrogacy.html
2. Intended Parents Frequently Asked Questions http://www.surrogacysolutions.net/parentsfaq.htm
3." Surrogates, families find state eases way," August 5,07, Arkansas Democrat Gazette http://www.nwanews.com/adg/News/197647/
4. "Opportunities for in vitro fertilization limited in state" August 5, 07 – Arkansas Democrat Gazette http://www.nwanews.com/adg/News/197669/
5. "New York Surrogacy Law" - http://www.surrogacy.com/legals/article/nylaw.html
6. " Surrogacy" by Timothy C. Appleton http://eshremonographs.oxfordjournals.org/cgi/reprint/2002/1/37.pdf
7. Assisted reproduction practice in Europe: legal and ethical aspects, Subtitle Surrogate pregnancy by Joseph G. Schenker http://humupd.oxfordjournals.org/cgi/reprint/3/2/173.pdf
8. New York Times "Surrogate Law vs. Last Hope of the Childless; Facing New Restrictions in New York, Couples Vow to Find Loopholes" July 28,1992 http://query.nytimes.com/gst/fullpage.html?res=9E0CE7D61739F93BA15754C0A964958260&sec=health&spon=&pagewanted=print
9. Arkansas Surrogacy Law, Overview of Arkansas, Copyrite 1996 http://www.surrogacy.com/legals/article/arlaw.html
10. Arkansas Donor Insemination Law http://hrc.org/Template.cfm?Section=Home&CONTENTID=22508&TEMPLATE=/ContentManagement/ContentDisplay.cfm
11. Arkansas Surrogacy Law, Overview of Arkansas, Copyrite 1996 http://www.surrogacy.com/legals/article/arlaw.html
12. Experts Watch Surrogacy Law Debate http://query.nytimes.com/gst/fullpage.html?res=9B0DE1D71731F932A25756C0A961948260&sec=health&spon=&pagewanted=2
13. See number 12
14. Actual law, Act 647 of 1989 can be found at this link: http://www.arkleg.state.ar.us/NXT/gateway.dll?f=templates&fn=default.htm&vid=blr:ar Type surrogate into the search line which says, "Containing all these words" and click search and arrow down to number 9 which will be Act 647. Number 2 on that page will be the Arkansas code written on that law.
15. Surrogate Law vs. Last Hope of the Childless; Facing New Restrictions in New York, Couples Vow to Find Loopholes, July 28, 1992 http://query.nytimes.com/gst/fullpage.html?res=9E0CE7D61739F93BA15754C0A964958260&sec=health&spon=&pagewanted=print
16. See number 15
17. New York Surrogacy Laws as late as 2004 by HRC (Human Rights Campaign) http://www.hrc.org/Template.cfm?Section=Home&CONTENTID=22477&TEMPLATE=/ContentManagement/ContentDisplay.cfm
State of Arkansas
77th General Assembly A Bill Act 647
Regular Session, 1989 HB1339
By: Representative Wilkins
An Act to Be Entitled
ACT TO AMEND TITLE 9, CHAPTER 10, SUBCHAPTER 2 OF THE
ARKANSAS CODE OF 1987 TO CLARIFY RESPONSIBILITY OF PARENTS TO
CHILDREN BORN AS A RESULT OF ARTIFICIAL INSEMINATION; AND FOR
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
SECTION 1. Arkansas Code 9-10-201 is hereby amended to read
"9-10-201. Child born to married or unmarried woman - Presumptions -
(a) Any child born to a married woman by means of artificial
insemination shall be deemed the legitimate natural child of the woman and the
woman's husband if the husband consents in writing to the artificial
(b) A child born by means of artificial insemination to a woman who is
married at the time of the birth of the child shall be presumed to be the
child of the woman giving birth and the woman's husband, except in the case
of a surrogate mother, in which event the child shall be that of the
biological father and the woman intended to be the mother, if the biological
father is married; or the biological father only if unmarried; or, in cases
of a surrogate mother when an anonymous donor's sperm was utilized for
artificial insemination, the child shall be that of the woman intended to be
(c)(1) A child born by means of artificial insemination to a woman who
is unmarried at the time of the birth of the child shall be, for all legal
purposes, the child of the woman giving birth, except in the case of a
surrogate mother, in which event the child shall be that of the biological
father and the woman intended to be the mother, if the biological father is
married, or the biological father only if unmarried; or, in cases of a
surrogate mother when an anonymous donor's sperm was utilized for artificial
insemination, the child shall be that of the woman intended to be the mother.
(2) For birth registration purposes, in cases of surrogate mothers,
the woman giving birth shall be presumed to be the natural mother and shall be
listed as such on the certificate of birth, but a substituted certificate of
birth may be issued upon orders of a court of competent jurisdiction."
SECTION 2. All provisions of this act of a general and
are amendatory to the Arkansas Code of 1987 Annotated and the Arkansas Code
Revision Commission shall incorporate the same in the Code.
SECTION 3. All laws and parts of laws in conflict with this
APPROVED: March 17, 1989