Smith's surrogate parent bill causes controversy
2 of Smith’s children were born through surrogates
Gary Smith’s two children, Henry and Anna Pierce, were both born through surrogates.
Sen. Gary Smith (D–Norco) sponsored SB 162 that provides legal rights to married couples in Louisiana who provide the sperm and egg for a child, but have it carried by a surrogate mother.
"People are doing it, but there are no protections out there and people are relying on contracts that are being written up and have no basis in law and do not have any guidance on how to handle this," Smith said. "There are some conflicts in the law today that need to be cleared up."
Smith, who has had two children with his wife through surrogacy, said the bill would protect the rights of the child’s biological parents in a surrogacy situation.
"What happens today is that parents who gave the embryo to the carrier have to turn around and adopt their own child," he said. "That sets up a legal situation where I’ve been told sometimes it has taken up to two years to go through the court system - even where everyone was in agreement to get the child to the rightful parents."
In addition, as the law currently stands, a surrogate could decide to keep the child herself and not give custody to its biological parents.
The bill was written by the Louisiana State Law Institute over a three-year period after they were asked to look into the matter by the legislature.
Mary Levy, secretary of the Louisiana State Law Institute’s coordinating, semantics, style and publications committee, said the bill was needed.
"This is really a very conservative effort in an area in need of regulation," he said.
Although it might seem innocuous at first glance, the bill has come under fire by various groups.
Adrienne Crichter, political spokeswoman for gay rights organization People Acting for Change and Equality, said the bill is discriminatory.
"It excludes gay and lesbian couples," she said. "It does help some people that will use surrogates, but it leaves out a lot of people. Any bill that says you have to be married to benefit from this legislation then of course gay people are left out. That legislation automatically discriminates against gay people."
Because the bill requires the parents who donate the genetic material for a child to be married the expanded rights will not cover gay and lesbian couples or single mothers.
"Sen. Smith has personal experiences with surrogacy. This bill is born out of his personal experience, but this needs to cover more people than just Sen. Smith’s family, it needs to cover everybody," Crichter said.
Smith said while the bill does not exclude gay and lesbian couples, it does fall under the state’s constitutional understanding of marriage, which is between a man and a woman.
"The bill identifies the parents as a married Louisiana couple. It allows the constitution to set out the terms of what a couple is. The definition in the bill is a married couple. State law already says what a married couple is," he said.
According to Smith, the bill was written by the Law Institute, who included the requirement that the child’s biological parents must be married.
"I can understand the left that feels excluded from this. I can appreciate that and understand that. This is no negative mark on them," Smith said. "The Law Institute considered the traditional values of Louisiana and what they thought was appropriate taking into account what the laws of Louisiana are today."
In addition to criticism from gay rights advocates, the bill also took shots from pro-life groups.
Gene Mills, president of the Louisiana Family Forum, said the bill is not sufficiently pro-life because it puts into danger unwanted fertilized embryos.
"For a pro-life governor and a pro-life legislature, we thought that was a concern," he said. "On principle it doesn’t pass the pro-life and pro-family test. It is up to the governor to veto it."
The Louisiana Family Forum is currently lobbying Jindal in an attempt to get him to veto the bill.
Smith called any concerns from pro-life groups unfounded.
"That’s all untrue to this bill," he said. "Louisiana law already protects any unused embryo. We have the tightest laws in the nation, the only law in the nation that I know of that says you cannot destroy an unused embryo for any kind of research. There is no overproduction of embryos that are then discarded here in the state of Louisiana. It can’t happen. It is a criminal offense."
According to Smith’s analysis of the bill’s effects, he only sees positive outcomes coming from the bill’s passage.
"It does not take any rights away and it doesn’t allow things to be done that are not already allowed to be done today. It just gives protections to people in certain circumstances that don’t have them today," he said.
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