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

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 the
raise financial costs and privacy invasions for those who do.