Assisted Reproduction

As Attention to Surrogacy Surges, State Laws Seem Poised to Get Much Worse

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All Things Surrogacy/Facebook

The New York Times attempts to unravel the tangled web of surrogacy laws and feels in the United States: 

While surrogacy is far more accepted in the United States than in most countries, and increasing rapidly (more than 2,000 babies will be born through it here this year), it remains, like abortion, a polarizing and charged issue. There is nothing resembling a national consensus on how to handle it and no federal law, leaving the states free to do as they wish.

Seventeen states have laws permitting surrogacy, but they vary greatly in both breadth and restrictions. In 21 states, there is neither a law nor a published case regarding surrogacy, according to Diane Hinson, a Washington, D.C., lawyer who specializes in assisted reproduction. In five states, surrogacy contracts are void and unenforceable, and in Washington, D.C., where new legislation has been proposed, surrogacy carries criminal penalties. Seven states have at least one court opinion upholding some form of surrogacy.

California has the most permissive law, allowing anyone to hire a woman to carry a baby and the birth certificate to carry the names of the intended parents. As a result, California has a booming surrogacy industry, attracting clients from around the world.

Perhaps there's room for reproductive-freedom advocates to reform surrogacy laws at the state level, though it seems the bulk of activism in this realm comes from surrogacy opponents—a gang that includes social conservatives and Christians, especially Catholics, who either see surrogacy as unnatural and immoral or a gateway for gay parents, and some feminist groups, who see surrogacy as exploitative. In the past few years, Louisiana, Minnesota, and New Jersey all passed laws allowing surrogacy in some situations that wound up vetoed by Republican governors, sometimes with urging from women's groups. 

Even the ostensibly pro-surrogacy crowd seems to favor making surrogacy more complicated and less accessible, at least in political circles. If this becomes a hot legislative issue, Americans will almost certainly wind up with less freedom in this area than we currently enjoy.

In the 21 states with no surrogacy laws, people can basically become and hire surrogates on their own terms, without onerous and arbitrary regulatory requirements. But Joanna L. Grossman, a family law professor at Hofstra University, told the Times "the big picture is that we're moving toward laws like the one in Illinois, which accepts that the demand for surrogacy isn't going away but recognizes the hazards and adds regulations and protections."

The surrogacy law that Louisiana Gov. Bobby Jindal vetoed this spring would have explicitly allowed surrogacy for some and explicitly banned it for homosexual couples (by requiring the embryo to use both sperm and egg from the intended parents). It would have also banned surrogacy that's not "altruistic," meaning surrogates couldn't actually get paid beyond basic reimbursement for pregnancy expenses. (Its ultimate demise was unrelated to either of these major flaws and more based on objections from the embryo-rights crowd.)

And the "model" Illinois law? It requires all parties involved in the surrogacy contract to undergo medical and psychological testing, says the intended parents must pay for an independent lawyer for the surrogate, and stipulates that surrogates be at least 21 years old and have given birth at least once before. It also bans surrogacy in which the surrogate's egg is fertilized by the intended father; only surrogacy in which the embryo is created in a petri dish using either sperm or egg from an intended parent and gets implanted in the surrogate's uterus (known as "gestational surrogacy") will be legally permitted.

Something to watch for with regard to emerging surrogacy law—people pushing solutions as "pro surrogacy" because they don't outright forbid or criminalize the practice but which actually create more categories of people who can't participate and raise financial costs and privacy invasion for those who do.  

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  1. and some feminist groups, who see surrogacy as exploitative

    Keep Your Laws Off My Body Unless Money Is Involved

    1. Damn it! That was what I was going to say but I was going to write Profitz!11!!!OMG111!!?!!

    2. Your body, your right to choose, but only if I would make exactly the same choice. Many people who self-identify as pro-choice are anti-choice on most things; they aren’t amused when I point this out, but they can’t refute me either.

  2. Also, there are too damn many laws, and way, way too damn many people seeking to make new ones.

  3. The surrogacy law that Louisiana Gov. Bobby Jindal vetoed this spring would have explicitly allowed surrogacy for some and explicitly banned it for homosexual couples…

    How do these bans manifest themselves? Fines? Imprisonment? Loss of protections or legal standing?

    1. You don’t recognize the contract and thus allow the birth mother to come and take custody any time she wishes. Homosexuals could still do it sure. But they would live forever under the shadow of the birth mother showing up and taking her kid back.

    2. A law that was being considered in Kansas suggested fines & up to 1 year imprisonment

      1. What?! Not *sterilization*?!

      2. Hopefully it’s the baby that gets the jail time.

  4. The only way to make surrogacy work is for people to be responsible for their actions and held to their contracts. That means if you sign the contract, fuck you, the baby goes home from the hospital with the contracting couple even if it has to be ripped out of your arms and you will never have any standing whatsoever to claim custody or any rights with regards to the child. And the couple will never under any circumstances have any rights to go after you regarding the child. Your parental connection to the child is terminated then and forever more.

    For it to work, couples have to have the confidence to know that there is no way the birth mother can ever go back on the deal or ever show up to make trouble for them later.

    Elizabeth, I like you but seriously, you don’t think there is any way our government is ever going to do that do you? I mean actually treat women like human beings and hold them responsible for the contracts they sign? In bizzaro world maybe.

    1. “You don’t think there is any way our government is ever going to do that do you? I mean actually treat women like human beings and hold them responsible for the contracts they sign?”

      Of course not. I think the more attention legislators pay to surrogacy, the worse & more muddled laws surrounding it will become. Which is a shame because there are some genuine contact issues that should be paid attention to

      1. Just wait until some gay couple divorces and one of them is left holding the bag on WIC with a child had by surrogate. The state will decide very quickly that it is just not fair that the birth mother is able to walk away from her responsibility for the child. All it will take is one case of that and the supply of surrogate mothers will got to something approaching zero.

        1. All contracts are subject to all sorts of shit, John. But an array of problems rarely hinders actual ‘business’ and it shouldn’t hinder the development of appropriate measures that paves the way for responsible and ethical surrogacy law.

          1. I am pretty sure the refusal to enforce contracts in an industry does more than just “hinders business”. It makes doing business impossible. If these contracts are not enforced and couples don’t feel confident the mother won’t come back later and surrogates don’t feel confident they wont’ some day be on the hook for child support, surrogacy won’t happen.

  5. especially Catholics, who either see surrogacy as unnatural and immoral or a gateway for gay parents,

    Of course.

    and some feminist groups, who see surrogacy as exploitative.

    Of course.

    Given the uniting of SoCon and Feminists I’m sure that surrogacy is in for a completely fucking retarded future in America. India will appreciate the business until they get around to unpersoning those children for the children.

    1. Other than hating the GAYZ, I am not getting why SOCONs would object to it. Couples are creating life, which is supposed to be a good thing.

      As for the Catholics, I would think they would love the idea of procreation without sex. They are the ones who object to sex for fun.

      1. See this

        “The child has the right to be conceived, carried in the womb, brought into the world and brought up within marriage.”

        1. I am pretty sure the child doesn’t know and wouldn’t care if he did. That is retarded. There is nothing in the Bible that says anything like that.

          1. As a Catholic I can guarantee that most of us don’t know what the fuck is in the bible, that’s what we got the big guy in the vatican for.

          2. in the Bible that says anything like that.

            Good grief, since when did we start using that standard?

            1. Since those God damned trouble making Lutherans showed up.

              1. What I find funny is that Protestants take the Catholic church’s word for what’s in Holy Bible.

      2. and

        surrogate motherhood represents an objective failure to meet the obligations of maternal love, of conjugal fidelity and of responsible motherhood; it offends the dignity and the right of the child to be conceived, carried in the womb, brought into the world and brought up by his own parents; it sets up, to the detriment of families, a division between the physical, psychological and moral elements which constitute those families.

        1. What is offensive is the idea that a mother could never bond to a child that she didn’t actually carry to term. Moreover, if there is some kind of mystical connection between pregnancy and parenthood, then all adoption is immoral. Every argument made in this paragraph applies equally well to adoption. Yet, last I looked, Catholics didn’t object to that.

          Sometimes, the Vatican reminds me why I am not a Catholic just in case I forgot.

          1. Seriously it’s like the Vatican never saw Aliens some times.

    2. Yes, this is a classic baptists and bootleggers alliance.

      I’m not sure offshore surrogacy would help with that, especially if the laws here allows the birth mother to interfere (ie, invalidates foreign-issued adoption or surrogacy agreements).

      1. Ouch.

        I know foreign adoption is screwed up in many instances…making it harder. Ugh.

      2. There are serious issues with the practice. Nations banning citizenship of surrogate babies and surrogates being left to raise children the contracting parents reject among them. It’s kind of a mess.

    3. Given the uniting of SoCon and Feminists

      So Catholics are Socons now? Do any of the idiots that use that word actually know how it came into the lexicon? I think anyone who uses Socon in an HyR post deserves to be kicked in both tits.

      1. SOCON and and NEOCON are all purpose words for “really icky and uncool man”.

  6. Well surrogacy is ONE means by which couples who are unable to bear children by way of conventional childbirth might still be able to have children they have at least some genetic connection to. For those who object to surrogacy (whether Catholic, evangelical, or feminist), it’s really none of your business.

  7. There is nothing resembling a national consensus on how to handle it and no federal law, leaving the states free to do as they wish.

    I’m no Constitutional Scholar, but isn’t this the way it’s supposed to work for the vast majority of issues? The way this was written it seems that the author thinks this is a bad state of affairs.

    1. That’s from the NYTimes article, just in case you thought it was me. And yeah, I think the author does seem to think this is a bad thing

    2. There is nothing resembling a national consensus on how to handle it and no federal law, leaving the states free to do as they wish.

      Seventeen states have laws permitting surrogacy, but they vary greatly in both breadth and restrictions.

      Sounds to me as if they’re saying that the people are confused as to how the law operates and don’t grasp the fact that you don’t actually need a law to permit you to do something. 17 states may have laws permitting surrogacy, the states that don’t have laws permit it as well.

      1. They may permit it without laws, but then the default laws of child custody & adoption apply, with the surrogacy contract not necessarily taken into acc’t.

  8. reproductive-freedom

    Hey, a situation where this term is actually accurate! Of course is all boils down to freedom of association in the end (including the getting paid for it part).

    1. That and holding people to their contractual obligations.

      1. I encompass that within freedom of association, you are free to contract with other people. A government that throws out surrogacy contracts is infringing on freedom of association.

        1. Not really. The only reason the government ever has the opportunity to throw out the contract is because one party doesn’t want to associate with the other. Enforcing the contract is the government forcing the losing party to do something they don’t want to do. That is of course a good thing. But it is not enforcing freedom of association. It is quite literally doing the opposite.

  9. The free artificial womb can’t be developed fast enough.

    1. That is a key aspect of the Brave New World universe, so it’s very bad. [/genetic-fallacy derp]

  10. I just researched foes of surrogacy. Sigh…

    The endless stream of humanity that exists to fucking dominate others over frivolous and questionable ethics/morality is a goddamn drag on reality.

    I understand that you love Gloria Steinem or Jesus or his mom or Mohammed booboo and you want to be in heaven and as such you desire to do what’s right for the babies and the womyns. Fine. Do what’s ‘right’ for YOUR baby and yourself as a feminist womyn. But leave the rest of society who is NOT on your wavelength the fuck alone and we’ll do likewise!

    1. I honestly don’t understand the theological objection the surrogacy. It makes no sense to me. If it involves creating and destroying embryos, sure. But if it doesn’t, what the hell difference does whose uterus is used make? None that I can see.

      1. “I honestly don’t understand the theological objection the surrogacy.”

        You need more blind faith in your religious leaders and less common sense, Bible-Believing John. 😉

        1. What is funny is the Catholics are all for couples adopting what are known as snowflakes. Snowflakes are fertilized embryos that couples doing IVF have created but are not going to use. From the strict pro life perspective, those embryos are children frozen in suspended animation and thus it is a great thing for a couple to take one and give them a home.

          Yet, surrogacy is the work of the devil. Really? Try and square those two positions.

          1. i think that is making the best of the situation. the Church is against IVF.

            1. Yes they are and for good reason.

              You make a fair point. You can square the two positions now that I think about it.

              I still don’t see how the church objections to surrogacy don’t apply equally well to adoption. And the Church is most certainly pro adoption.

              1. same thing i think. this is a choice that is better thanthe alternative, namely abortion. in surrogacy, the couple is going out of its way to create a life outside the “norm” just like IVF.

                1. i’m not well versed in this area, but St. Joesph is kind of a role model in this area.

                  but no doubt, the ideal is mom, dad in a married situation.

                  1. St. Joesph would be the opposite of a role model. From the Church’s prospective his decision is one that will never have to be made again. To treat Joesph as some kind of patron saint of cuckholdry is to miss the point.

      2. So all uteri look the same to you, John? You cisgendered bastard!

        1. The feminists at Salon masturbate to your moniker, dear.

  11. Wait, people object to surrogacy? What the fuck?

    1. Exactly my initial fucking response, broseph.

  12. There is nothing resembling a national consensus on how to handle it and no federal law, leaving the states free to do as they wish.

    OH NOOOOOOOOOOOS.

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