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.