Nothing is certain but taxes and death. So the old adage goes, and it holds true even today. It begs the question, should surrogacy be taxed? A recent journal article written by Bridget J. Crawford, Professor of Law at Pace University in New York, argues that surrogacy falls within the realm of taxable services. She cites precedents that found selling bodily fluids to be taxable. The first one, Green v Commission (1980) determined that a taxpayer who regularly sold her plasma, was in the “business” of doing that, and while she was entitled to take deductions off her taxes for the costs associated with the plasma deposits, such as mileage and groceries, she was still required to pay taxes on the money she earned from the deposits. A second decision reached by the Department of the Treasury found that selling breast milk was also taxable, as the taxpayer selling her breast milk was selling “inventory” (Brown, 2010; Internal Revenue Service Gen. Couns. Mem., 1975).

There is the belief that surrogacy should not be taxed because the surrogate must endure pain and suffering in order to go through a pregnancy on someone else’s behalf. U.S. income tax law excludes from gross income any amounts received by a taxpayer on account of personal physical injury. This means that the surrogate would not pay taxes on her fee because the pregnancy would be considered personal physical injury. The argument against that, however, is that the surrogate pregnancy can not be considered personal physical injury when the surrogate mother contracted with the intended parents to undergo a pregnancy. But what if complications arise from the pregnancy? Complications such as the surrogate enduring a miscarriage, having to live through months on bed rest, or in the worst case, needing a hysterectomy and thus preventing her from carrying ever again, are all potential outcomes to a pregnancy. When the surrogate signed the contract, these possible eventualities were probably touched on, but likely dismissed as being improbable. It is therefore acceptable that the pregnancy be considered personal injury as the surrogate is accepting the fact that there could be extremely dire outcomes and is accepting of that possibility.

Ms. Crawford’s argument goes on to discuss her belief that taxing surrogacy would legitimize the practice. She asserts that the tax would enhance the well-being of women by making it part of the public dialogue. “Bringing surrogacy out of the shadows and into the sunshine of law is a step toward recognizing the value of reproductive work…Tax law and the enforcement of tax laws relating to surrogacy is a part of the progress towards justice for women…” (Crawford, 2010). In this statement it is apparent that Ms. Crawford believes her argument is helping surrogates, and women in general.

Enforcing a tax on surrogacy would ultimately hurt all parties involved. Surrogates may not want to undergo the process, for fear that they will not receive all the money they are paid because they will have to pay taxes on it. Additionally, they could have ethical opinions that cause them to not want to pay the government for something they did with their body with altruistic intentions. Intended Parents will have a hard time, too, because the surrogate’s fees will need to be increased to account for the amount she will need to spend on the tax. This in turn could make it cost prohibitive for the Intended Parents. Finally, it will hurt surrogacy agencies, because it could lead to fewer surrogates and fewer Intended Parents working with an agency, choosing instead to try to do everything “under the table” to avoid the tax. Taxing surrogacy is not socially sound and should not be enforced.

By Holly Langdon
Administrative Coordinator
Center for Surrogate Parenting, Inc.

References:
- Crawford, B. (2009). Taxing surrogacy.
- Comptroller General of United States, General Accounting Office Report (1975, 4 November).
- Green v Commissioner, 74 T.C. 1229, 1234 (1980).

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The majority of the focus in discussions about surrogacy is the creation of the children.  Or the legal issues determining who are the parents.

After all is created and granted, what we are left with is a family.  Formed in an unusual way perhaps.

I have been a Mother for the last 20 years now – to a daughter who is 20 and a son who is 16 – born by wonderful surrogates at CSP.  I definitely know that parenting these children has been the joy of my life - so far!----

I do think my parenting has been somewhat different due to the special beginnings.  There is no question that I was a most enthusiastic Mother – I had waited 43 years to be able to hold our baby daughter. Then 47 when my son was born.  So when I turned  50, I had a three year old!

Perhaps what time had robbed in the form of physical energy was more than generously made up for with an extra helping of desire to be a good parent.  I wanted to connect to my children on as deep a level as I could.  I wanted to carry them and read to them and play with them…I wanted to have that time of my life – spent TOTALLY with them as a family.  I didn’t have nannies or babysitters or family who shared the duties with me.  I wanted it to be my hand that stroked my daughter’s head that she would remember… I wanted it to be my name called in the morning to get them out of the crib.  I wanted to be the one that they would remember.

The surrogacy experience has added other twists and turns – they once or twice informed me that they didn’t have to do what I said because I "wasn't their real Mother anyway."  The pain of those words cut like a knife but we worked our way through – with truth, with explanation, with understanding.  Understanding  that everyone came together, in a team effort to give them a life.  "You may not be from my flesh and blood, but you are more, you are from my heart."

They understood my passion to have them exist. They have recognized my sheer joy that they are my children…or rather perhaps, that I got to be their Mother.

Today there is a great deal of focus on surrogacy being done in India.  How  “wonderful it is that it is so much less expensive than in the U.S.”  The women are recruited from small, outlying villages.  Their husband’s are deciding that they will go away for a year to become a surrogate.  They will probably not get to see their children during the year that they are away in a commune full of other surrogates. If they return and their husband’s Mother finds out that they were a surrogate, they risk being ostracized, and physically harmed.  “But they earn so much money for this – it is so much money in India…what a wonderful opportunity "I hear people say.  I hear trained mental health professionals who work in the field of surrogacy casually speak of these circumstances as “not such a bad thing – the facility can be lovely."

I am appalled.  In the 80’s when I was trying to educate women’s groups about surrogacy, I was a member of the Greater Los Angeles Coalition for Reproductive Rights. I was actually on the Steering Committee.   I was booed for being a pro-surrogacy advocate – and treated as though I was simply a white woman who somehow forced some poor, third world woman to bear my child.    It was interesting to me that the group was, in my opinion, really a PRO Abortion Group.  These were the makers and shakers of Los Angeles professional women – straight and  gay… the Women’s Libers.   I believe that the true agenda was abortion rights – which is fine, but don’t bill yourself as “reproductive rights advocates”.  In actuality, I think most of these women DIDN’T want children so they wanted to make sure that if they got pregnant, they could always have a legal abortion.   I was so offended by the other member’s attitudes about surrogacy that I asked if I could give a presentation to help the group understand the issue.  My position was that surrogacy IS a pro-choice issue – the choice to HAVE a child – even for another woman.  We’ve come a long way in the 18 years since I was a member of the organization.

Or have we?  It feels to me that the way surrogacy is done in India is what all those people were fearful of back in the 80’s and 90’s.

I am eternally grateful that my children were born by surrogates who were allowed to decide to be a surrogate by herself.  Whose children were not deprived of their Mother for a year.  How is THAT good for these families?  How is THAT good for these children?  To have their Mother just disappear for a year.  I am grateful that my surrogates were women who made this choice, who lived their normal lives with their children and husband’s.  Basically, that no one was forced to do this for me. The leaders in India of the surrogacy industry claim that “our cultures are so different, so it doesn’t matter that the women are taken away from their own families for a year”.   Wrong is still wrong, and that practice isn’t good for children – no matter where they live.

My children are proud that they  were created through a loving, “whole” surrogate mother. ..as opposed to what I think of as a “slave”.    Each of them has met their surrogate on several, if not many occasions – along with their families.  We all know each other, rather than it being anonymous.  Everyone feels that they made a wonderful, and meaningful contribution to the world being a better place.   I cannot imagine my children feeling good about their origins had they been born into the circumstances that currently exist in Indian surrogacy.  I cannot imagine that the children born through Indian surrogacy will be half as well adjusted on the subject as mine are.  I cannot imagine that they would be as proud of how they were created.  Parenting them might have been much different for me if I had felt that another family suffered – regardless of the money – because their Mother was taken away to  bear children for me.

I simply cannot imagine justifying that to my children as they grew up.

By Fay Johnson
Intended Parents Coordinator
Center for Surrogate Parenting, Inc.

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