A Cautionary Tale: When Sexual Harassment and Surrogacy Collide

The resignation of former U.S. Rep. Trent Franks (R-Ariz.) for allegedly engaging in sexual harassment of two female employees by urging them to engage in traditional surrogacy for him and his wife,  raises questions about how IVF and surrogacy work.

The news reports reveal the emotional distress he and his wife experienced as a result of their need for surrogacy in order to conceive. And the women working in his office also described stress as a result of his reported sexual harassment and his peculiar request for them to be surrogates.

As both a forensic expert in harassment as well as a psychologist in Northwestern University’s Division of Reproductive Endocrinology and Infertility, I understand the psychological toll of both sexual harassment and infertility.

Women who experience harassment frequently report symptoms of depression and anxiety. Women who are unable to carry a pregnancy are also emotionally devastated.

Whether caused by the absence of a uterus, uterine abnormalities or damage, or other medical risks, patients who are unable to carry a pregnancy describe the loss as similar to grieving a death, the death of their reproductive dreams. Hope for these women to carry a child is on the horizon with recent medical advances resulting in the first U.S. birth of a child from uterine transplant. The current cost of such treatment is prohibitive. Surrogacy is more affordable and, unlike the allegations against Franks, often offers a beautiful and poignant way to build a family.

Franks’ request is reminiscent of Margaret Atwood’s novel “The Handmaid’s Tale.” Now a critically acclaimed TV series, Atwood’s handmaids are valued as vessels for reproductive purposes by members of an elite fundamentalist class. The handmaid’s own eggs are used to conceive the pregnancy they are carrying for someone else.

“The Handmaid’s Tale” is fiction. However, recent legal attacks on women’s reproductive rights such as efforts to ban abortion, reduce access to birth control, and even the alleged ban of the use of the word fetus have resulted in grave concern that fiction may become reality.

Protests with women donning Handmaid costumes serve as powerful imagery of what women’s future might look like if women’s reproductive rights are taken from them.

Franks allegedly made repeated requests that two female employees be impregnated via sexual intercourse with him in return for $5 million. His alleged anger and retaliation against them for refusing his request suggest an attitude that women are to be submissive in reproductive and sexual matters.

Of course, his outrageous demand does not reflect the typical way surrogacy arrangements happen.

Requesting that your employee to be your surrogate is unwise. An inherent power imbalance may result in an employee worrying that their job is at risk if they don’t comply with the request. Conflicts may also arise during the pregnancy and again place the employee’s job at risk.

Current state legislation, including in Arizona, prohibit legal contracts for compensated and/or altruistic surrogacy arrangements. This is especially true in traditional surrogacy when the surrogate’s egg will be used to conceive the pregnancy. If such contracts are permissible they may require that the non-genetic parent complete a second parent adoption from the surrogate who may also be the egg donor.

Most surrogacy arrangements in the United States involve appropriate legal contracts and the creation of embryos from someone other than the gestational carrier. Although not inexpensive, the typical costs associated with surrogacy are only around $150,000.

Compensation in surrogacy arrangements raises ethical concerns about financial coercion of women to “sell their bodies” against their best interests. However, gestational carriers commonly report positive reactions as a result of their experience.

The American Society for Reproductive Medicine clearly states that coercion of any kind is not allowed and the presence of coercion is assessed by psychological evaluation.

Many have expressed concern about the ethics of IVF given Franks’ conservative religious beliefs.

It is a misconception that large numbers of embryos are commonly created or transferred in IVF. Not all eggs are of good quality and will not fertilize, not every embryo develops normally and may not result in a viable pregnancy. Typically only a few chromosomally normal and potentially viable embryos may be frozen for use.

With the exception of embryo cryopreservation and elective genetic testing of embryos, this process is comparable to what happens in a pregnancy conceived through intercourse. The American Society for Reproductive Medicine also sets guidelines for embryo transfer intended to limit multifetal pregnancies which have greatly declined over the years.

Although a baby was born recently from a donated embryo frozen approximately 25 years ago, embryos are not babies and thus are not “adopted.” So no home study is needed, as has been suggested in the media. Use of the word adoption in embryo donation is problematic as it could imply that embryos should be given personhood which is an argument used to attack abortion rights.

Others remain concerned that in IVF embryos are created outside the body and that embryos may be destroyed which may or may not be viable or chromosomally normal. Given how passionately many people feel about these issues, those who support or oppose IVF are unlikely to come to an agreement about its use.

Franks indicated his use of IVF was religiously acceptable as no embryos were destroyed. My religious IVF patients who struggle with these concerns seek advice from religious leaders or others. They may ask that only a limited number of embryos be created and that their embryos not be screened for chromosomal anomalies. They may also use all of their embryos or donate excess embryos to others.

The strange case of Franks can serve as a reminder of the necessity to follow guidelines that are ethically, medically and legally sound in an effort to create families. That is a reality we can live with.

Dr. Angela Lawson, a forensic expert and clinical psychologist and associate clinical professor in the Departments of Obstetrics and Gynecology & Psychiatry at Northwestern University Feinberg School of Medicine, is a Public Voices Fellow through The OpEd Project.

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