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Florida Attorney General James Uthmeier, right, is reportedly arguing in court that surrogacy violates the 13th Amendment of the U.S. Constitution.<\/p>\n
Carl Juste<\/p>\n
cjuste@miamiherald.com<\/p>\n
Florida Attorney General James Uthmeier is making an unusual legal argument against conceiving children through surrogacy: that it is the equivalent of \u201cmodern-day slavery,\u201d<\/a> and violates the U.S. Constitution\u2019s prohibition on slavery under the 13th Amendment, the Herald\/Times Tallahassee Bureau reported this month.<\/p>\n This isn\u2019t just an ambitious lawyer \u2014 a political appointee running for office for the first time this year \u2014 testing a novel theory by inserting himself into a Broward County surrogacy court case.<\/p>\n If successful, Uthmeier\u2019s strategy could easily have far-reaching implications. There could be the potential erosion of what\u2019s left of abortion rights in Florida, where the procedure is already banned after six weeks of pregnancy, and the increased surveillance of pregnant women. As the Times\/Herald reported, even in-vitro fertilization has the potential to be affected in some cases.<\/p>\n That sounds ominous, but it\u2019s a warning to look beyond Uthmeier\u2019s red-meat rhetoric on this issue. He wrote on social media<\/a> in February that surrogacy is \u201cthe next form of human trafficking \u2014 American babies purchased and sold to predators and people with evil motives.\u201d (A South Florida surrogacy lawyer who had a child via a surrogate refuted Uthmeier\u2019s views<\/a> in a recent opinion piece for the Miami Herald).<\/p>\n Uthmeier\u2019s constitutional argument relies on the premise that fetuses have \u201cpersonhood\u201d status and the same constitutional protections given to people who are already born, Caroline Mala Corbin, a constitutional law professor who specializes in reproductive rights at the University of Miami School of Law, told me.<\/p>\n Anti-abortion rights activists have made the fetal personhood argument for decades.<\/p>\n In the Broward case \u2014 involving a couple and a surrogate mother \u2014 the court did not ask Uthmeier to intervene, the Herald\/Times reported. The case records are not public but a lawyer representing the couple told the Herald\/Times that Uthmeier seems interested in securing a court opinion limiting reproductive technology. He has even made the bizarre suggestion that people who donate their sperm, eggs or embryos should keep parental rights and parental obligations, the lawyer said.<\/p>\n Surrogacy is heavily regulated in Florida<\/a> \u2014 for example, the state restricts it to parents who cannot carry a pregnancy to term or when the mother or the fetus would be harmed, the Herald\/Times reported. If people abuse the system, then it\u2019s the job of lawmakers to reform laws. Uthmeier is instead trying to ban the practice all together.<\/p>\n I understand concerns by Uthmeier and others about protecting children and not wanting surrogacy to become simply a business. If it were up to me \u2014 and it\u2019s not \u2014 couples should think about adopting because there are so many children who need families.<\/p>\n The bigger problem is that if the courts consider a fetus a person, then our \u201clegal landscape would change dramatically,\u201d Corbin said. Abortion could be considered murder, and women could fall under \u201cintensive surveillance\u201d of what they do during pregnancy, she added. Say an expecting mother eats raw fish, which doctors strongly advise against during pregnancy, and contracts salmonella \u2014 would she find herself in legal crosshairs?<\/p>\n That may sound far-fetched, but so did the possibility that the U.S. Supreme Court would overturn Roe v. Wade\u2019s nearly 50-year precedent on abortion rights in 2022 or that the Alabama Supreme Court would classify in-vitro embryos as children. (After the ruling, Alabama lawmakers rushed to pass a law to protect IVF clinics from liability<\/a> in 2024.)<\/p>\n Looking at the current landscape of state and federal courts, how can we not wonder what\u2019s next? Florida\u2019s Supreme Court is stacked with Gov. Ron DeSantis\u2019 conservative appointees and at least five of them have appeared to express interest in the idea of fetal personhood,<\/a> the Herald\/Times reported. DeSantis also appointed Uthmeier to be attorney general.<\/p>\n Uthmeier, who\u2019s against abortion, hasn\u2019t said whether his surrogacy challenge is meant to test fetal personhood in the courts. But it\u2019s hard not to link both topics.<\/p>\n Surrogacy hasn\u2019t been a mainstream concern in Florida, but it looks like Uthmeier is trying to make it the next culture war. It\u2019s a strategy DeSantis has successfully used as governor: Convince the public something terrible is happening to children \u2014 i.e. \u201cwoke\u201d teachers indoctrinating students \u2014 and present yourself as the savior.<\/p>\n The last thing Florida needs is a new culture war, especially one with such serious potential ramifications.<\/p>\n Isadora Rangel is a member of the Miami Herald Editorial Board.<\/p>\n
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