December 20, 2013 | Posted By Lisa Campo-Engelstein, PhD

There are many celebrities who make the news because they have used a gestational surrogate to have their children, including Sarah Jessica Parker, Guiliana Rancic, Elizabeth Banks, Nicole Kidman, Ricki Martin, Neil Patrick Harris, and Elton John. From the little information provided about their surrogacy arrangements, it seems like most of the celebrities partner with surrogates who live in the US. What is almost never mentioned in these articles is the legality and enforceability of surrogacy contracts, which can vary dramatically from state to state. Each state has to determine how they want to regulate surrogacy because there is no federal legislation, though there was a push for it following the infamous Baby M case. 

Surrogacy laws can be categorized into three categories. The first category is comprised of laws that permit surrogacy contracts by outlining the criteria for the contracts to be lawful and enforceable. For example, surrogacy laws in Florida require that the intended couple must be over 18 years old and married, the intended mother must be incapable of gestating a pregnancy without physical risk to herself or the fetus, and at least one of the intended parents must be biologically related to any resulting child. These requirements have to be fulfilled in order for any surrogacy contract to be legal and enforceable.

Rather than enumerating the necessary criteria for surrogacy contracts to be legal and enforceable, laws in the second category do the opposite by stating what is not legal with regards to surrogacy, such as commercial surrogacy, advertising for surrogacy, or getting paid to broker a contract. One drawback of these laws is that they do not address the legality of surrogacy contracts that do not violate the restrictions. In Kentucky, for example, statutes deny the enforceability of surrogacy contracts when compensation is given to the surrogate or if an attorney or agency is paid to negotiate the contract. However, these statutes are not clear about covering the ordinary expenses associated with a surrogacy and they only directly refer to traditional surrogacy. Therefore, it is unclear if altruistic and gestational surrogacy is also illegal.

Unlike laws in the first two categories, laws falling under the third category are clauses that mention surrogacy in the context of other civil laws. Like the secondary category, these clauses fail to take a clear stance on surrogacy. For example, Iowa and Alabama have included clauses within their adoption law that forbids payments in adoption proceedings in order to allow surrogates to be financially compensated. In Wisconsin, a statute was passed that outlines how a birth certificate should be issued in the event that a surrogate gives birth. The legality and enforceability of surrogacy contracts is not addressed in this or any other Wisconsin statute.

These categories are not mutually exclusive, so laws can fall into two or more of these categories. For example, a surrogacy law in Louisiana stipulates that a surrogacy contract can be enforceable as long as no financial payments are made. This law falls into the first two categories because it outlines how to make a surrogacy contract legal and states what is not allowed with regards to surrogacy.

Challenging the constitutionality of laws that restrict surrogacy has not yielded positive results. Two court rulings in Michigan attest to this outcome. In Doe v. Kelly, the constitutionality of a statute that banned compensation for adoption, including within surrogacy arrangements, was challenged on the basis that it hinders a person’s right to procreate. The statute was found to be constitutional because it still allowed altruistic surrogacy and uncompensated adoption. In Doe v. Att’y Gen, the constitutionally of a law that outright banned surrogacy agreements was brought into question on the basis that it violated private, procreative decisions. The court affirmed the constitutionality of the law in question by claiming it is preventing the commodification of children, promoting the best interests of children, and preventing the exploitation of women [15].

Finally, some states do not have any laws dealing with surrogacy. Recognizing the complexity of surrogacy, especially the numerous possibilities for surrogacy contracts, some states have concluded that legislation is not the best way to address this issue. Consequently, courts have been left with the burden of resolving conflicts and dictating informal policies within these states. Many courts defer to precedents set by Baby M and other legal cases to resolve surrogacy disputes, such as looking specifically at whether surrogacy arrangements follow adoption laws, the best interests of the child, and who the intended parents are. These precedents have also been a guideline for some states with regards to their statutes on surrogacy. For example, Arizona and Indiana explicitly make surrogacy contracts unenforceable so surrogacy can follow adoption laws in allowing the surrogate to change her mind and keep the baby within a certain timeframe after giving birth.

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI's online graduate programs, please visit our website.

2 comments | Topics: Assisted Reproduction , Reproductive Medicine


San Bonse

San Bonse wrote on 02/27/14 5:04 AM

I’m a new reader and have been very impressed with your recent posts and thought to drop a friendly note. It is really a great information indeed. Waiting for more posts.....
Lisa Campo-Engelstein

Lisa Campo-Engelstein wrote on 06/27/14 9:31 AM

Thank you very much!

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