1.  The History of Gestational Surrogacy in the United States

The first distinction to be made when discussing the history of gestational surrogacy in the United States is the difference between traditional surrogacy and gestational surrogacy. This is because gestational surrogacy grew out of surrogacy in general. Before there was advanced medical technology such as successful in vitro fertilization (IVF), transfers of embryos created through IVF into the surrogate’s womb, creation of embryos from egg donors and/or sperm donors, and other technological advances in reproductive medicine to achieve pregnancies, there was traditional surrogacy.

Traditional surrogacy is when the surrogate becomes pregnant with the sperm of the intended father. Her egg is fertilized, and she carries the pregnancy with the intention that the baby will be placed with the intended parents, and they will become the legal parents of this baby. The intended parents may be a heterosexual couple wherein the intended mother cannot conceive or become pregnant, a gay male or gay female couple, or a single intended father or single intended mother.

In these traditional surrogacy arrangements, although the surrogate is agreeing to conceive and bear a child for the intended parents, the conception and pregnancy are the result of the fertilization of her egg. She is both the genetic mother and the birth mother.

In modern parlance, traditional surrogacy is referred to as genetic surrogacy, and there are some current laws that provide for legal protection of intended parents in cases where the surrogate is a genetic surrogate. One such law is the Connecticut Parentage Act, which allows genetic surrogacy and provides that the intended parents may petition a court of law to become the legal parents of the baby prior to the birth.

Traditional or genetic surrogacy is analogous to a woman who becomes pregnant and then allows the adoption of her baby by adoptive parents. The difference is that the parties to the traditional surrogacy agreement make the agreement prior to the pregnancy. They enter into a written agreement that states that the intended parents will become the legal parents of the baby, and the surrogate will relinquish her parental rights to the baby so that the intended parent(s) may become the sole legal parent(s) of the child.

One of the best-known contested cases in traditional surrogacy is In the Matter of Baby M, 109 N.J. 396, 525 A.2d 1128 (1988). In this case, a straight couple, the Sterns from Pennsylvania, contracted with Mary Beth Whitehead, a New Jersey woman. Their agreement stated that Mrs. Whitehead would become impregnated with Mr. Stern’s sperm, and upon the birth of the baby, she would be paid $10,000 and give the baby to the Sterns, who would become the legal parents.

Upon the birth of the baby on March 27, 1986, Mrs. Whitehead changed her mind and wanted to keep her baby. A lower court ruled in favor of the Sterns and ordered that they have custody of the baby. The court terminated Mrs. Whitehead’s rights. On appeal, the New Jersey Supreme Court reversed the lower court verdict and held that surrogacy contracts are unenforceable. Mary Beth Whitehead retained her maternal rights. However, the court awarded full custody to the Sterns and granted visitation rights to Whitehead.

There are also many traditional surrogacy cases with good outcomes. One gay couple asked the sister of one of the men to be their traditional surrogate. The sister was impregnated with the sperm of her brother’s partner. She gave birth, willingly and happily delivered the baby to her brother and his partner, and relinquished her parental rights. The couple became the legal parents and continued to have an intact family. The birth mother transitioned into a very loving aunt.

The problem with the traditional surrogacy arrangement is the legal peril. Except in the cases of some current laws and legal procedures that must be carefully followed for legal protection, the baby is legally and ethically the child of the surrogate. If there are no laws to protect the intended parents, and if the intended parents do not retain legal counsel to carefully attend to the laws and procedures that may protect the intended parents, the traditional or genetic surrogate would have every right to change her mind and keep her baby.

Further, even if the few laws that might protect the intended parents are accessed, these laws are new and have not been tested in the courts. There is a distinct possibility that genetic surrogacy laws may be found to be unconstitutional if ever fully tested by a genetic surrogate who desires to claim legal parentage for her genetic baby. The surrogate is conceiving, gestating, and giving birth to her own child.

Assuming there is a legal dispute over custody or legal parentage of the baby, the court will need to determine if the traditional surrogacy agreement is enforceable. The court may consider the expressed intentions of the parents as they are stated in the surrogacy agreement, but the court will scrutinize the agreement to determine if it meets the letter of the law or if there is some reason it may not be enforceable. Many judges may seek to side with the surrogate who is the genetic mother. There is most likely no case or lawyer that will be able to assure the intended parents of a traditional surrogacy arrangement that all will be legally safe or certain.

In fact, the Baby M case had a significant impact on surrogacy in the United States. As Sophie Lewis wrote, “[T]he case of Baby M immediately launched surrogacy into public infamy. In response to the drawn-out litigation and Supreme Court appeal that ensued, enormous crowds demonstrated up and down the east coast, and the Coalition Against Surrogacy was born.”[1] The case highlighted the ethical dilemma posed by surrogacy in that it is often the exploitation of women in favor of more affluent people who can afford to hire someone to provide them with a baby. The concept of baby selling and the intensely strong and, in fact, important public policy against baby selling or baby buying is a prominent aftermath of the Baby M case. Iver Peterson wrote, “[T]o some who have studied the issue, one of the most disturbing elements of surrogate motherhood is the overtone of class exploitation.”[2]

While many states and courts over the years made new laws to allow compensated gestational surrogacy, some states held on to strong public policies against any form of surrogacy. New York was one of those states. As an outcome of the Baby M case, New York enacted its Domestic Relations Law §123 (DRL §123), which “penalizes individuals who engage in surrogacy agreements for any remuneration.” The law, now superseded, stated that a birth mother or her spouse, a genetic father and his wife, and, if the genetic mother is not the birth mother, the genetic mother and her spouse were subject to a civil penalty of up to $500 for attempting to enter into a surrogacy agreement. Further, any individual who assisted in arranging a surrogacy agreement for a fee was subject to a civil penalty of up to $10,000 for a first-time offense. However, in practice, an individual was permitted to pay for medical costs, which were considered reimbursement rather than compensation. Also, under the superseded New York law, if someone was penalized for arranging a surrogacy agreement, and violated the provision again, that individual could be found guilty of a felony.

At last, after years of attempts by legal experts and legislators in New York State, the Child Parent Security Act was passed in New York. On April 27, 2020, Denise Seidelman and Alexis Cirel, two attorneys who tirelessly spent years drafting, redrafting, and advocating the passage of this new law, reported in the New York Law Journal, “[O]n April 2, 2020, the Child-Parent Security Act (CPSA) passed the New York Legislature as part of Gov. Andrew Cuomo’s year 2020 budget package. The CPSA is comprehensive, addressing and securing the legal relationship between children and their parents when the children were conceived through third-party reproduction. The CPSA also discards New York State’s antiquated ban on compensated gestational surrogacy, i.e., where the surrogate has no genetic relationship to the child.”[3]

The New York Child Parent Security Act is a law that promotes the ethical practice of surrogacy more than any other law in the United States on the books at the time of this writing. It incorporates a Surrogate’s Bill of Rights that provides statutorily based protections for women becoming surrogates including the following: (1) life insurance of $750,000; (2) comprehensive medical insurance to be paid for by the intended parents (with some exceptions) and to be maintained for twelve months after a birth, miscarriage, or termination of pregnancy; (3) the provision that women may make all of their health care decisions and choose their medical providers without a concern for breach of contract since this right is according to the statute; and (4) the right to terminate the surrogacy agreement for any reason at any time prior to a pregnancy. There are also many protective provisions for intended parents, including that they may file for a judgment of legal parentage directly after the surrogacy agreement is executed, that the surrogacy agreement is enforceable provided it includes the necessary elements from the new statute, and that the establishment of legal parentage is mandated as long as the statutory requirements are met.

Further, there is a clear description of what the compensation to the surrogate represents. There will not have to be guesswork by lawyers to figure out how to define or describe the compensation paid to surrogates. The New York CPSA (Article 5C of the Family Court Act) provides that “[c]ompensation may be paid to a donor or person acting as surrogate based on medical risks, physical discomfort, inconvenience and the responsibilities they are undertaking in connection with their participation in the assisted reproduction”[4]

Prior to the passage of the CPSA, although New York did not ban altruistic surrogacy (compassionate surrogacy), in which a woman agrees to gestate a child (not genetically related to her) for a couple or a single intended parent, the ban still had the effect of foreclosing compensated surrogacy arrangements. Women in New York who wished to become a surrogate to help create a family and to also receive fair compensation for all that they would go through to do this were not able to become gestational surrogates. Intended parents from New York were forced to look for and match with surrogates from other states in the United States where gestational surrogacy was legal.

Other states have also acted to enable willing and deserving intended parents to access gestational surrogacy. The state of Washington also had a ban on compensation surrogacy until its new law, the Uniform Parentage Act, took effect on January 1, 2019, legalizing compensated gestational surrogacy. In 2018, New Jersey, where the Baby M case was heard and decided, ended its many years of a compensated surrogacy ban by enacting the New Jersey Gestational Carrier Agreement Act.[5] (See chapter 10 (“Stages of the Surrogacy Journey”), section b, and chapter 13, “The Laws of Gestational Surrogacy,” for an overview of legal matters related to surrogacy.)

Surrogacy began to be known in the legal sense in the United States in the 1970s. A lawyer by the name of Noel Keane drafted the first surrogacy contract in the United States in 1976 and continued to draft surrogacy contracts and assist in surrogacy arrangements for as many as 600 babies, including Baby M, the child of Mary Beth Whitehead.

As a result of the legal complications and peril of traditional surrogacy arrangements, as well as the advances made in reproductive medical technology such as in vitro fertilization, egg donation, and sperm donation, the landscape of surrogacy transformed largely to one of gestational surrogacy. Traditional surrogacy still exists today, but gestational surrogacy has taken root as the most popular and widespread form of assisted reproduction through surrogacy in the United States.

Although the one drawback of gestational surrogacy is the cost, there are good reasons people turn to this way of having a child through surrogacy. It is legally safe in that the intended parents can become the legal parents of their developing baby before the birth. The surrogate will not have an inclination or desire to keep someone else’s genetic child. She has her own children. In fact, when lawyers and other surrogacy professionals consult with intended parents, they assure intended parents of this by telling them (and this is true) that the surrogate wants to make sure that the parents take custody of their child. Also, the intended parents have control of making their own embryos, either with their own egg and sperm or with egg donors and/or sperm donors that they choose.

2.  The Ethics of Gestational Surrogacy in the United States

Because of the ethical framework of surrogacy in the United States, the technological advancements of reproductive medicine,  and the competent and dedicated lawyers and physicians who practice gestational surrogacy, the United States is one of the best places to go through a surrogacy journey. The medical technology is highly advanced, resulting in excellent pregnancy success rates, and intended parents will have security in knowing that there is clear law to protect their parental rights. Another major reason is the practice of ethics by the professional community engaged in gestational surrogacy.

Throughout the world, there is controversy over surrogacy. Whenever there are conferences in Europe for surrogacy professionals and intended parents, there are street protests against surrogacy. They arise from a school of thought that surrogacy causes the exploitation of women—that is, the use of women as gestational hosts for the benefit of affluent intended parents who can pay for the services of a surrogate. A further branch of this opposition holds that surrogacy commodifies the conception of babies and, therefore, lends itself to baby buying, selling, and even trafficking.

Interestingly and not surprisingly, conservative entities such as the Catholic Church team up with feminists in their opposition to surrogacy:

The Catholic Church has opposed this practice since the late 1980s. With the document Donum Vitae,[6] the Vatican’s Congregation for the Doctrine of the Faith first expressed its opposition to any form of in vitro fertilization in 1987. Surrogacy in particular has been defined as “an objective failure to meet the obligations of maternal love, of conjugal fidelity and of responsible motherhood” because it creates “a division between the physical, psychological and moral elements” that lead to the creation of a family.[7]

Some feminists also oppose surrogacy. “[I]t is not uncommon to see opposition from the left. In France, for instance, the country’s largest lesbian association, the Coordination Lesbienne, has opposed surrogacy since 2011, and progressive feminists like the philosopher Sylviane Agacinski have joined the cause. In Sweden, it was a social democratic government—one that prided itself on being ‘the first feminist government in the world’—that banned surrogacy in 2016. Spain’s Feminist Party has also objected to it.” However, “[n]ot all European feminists reject this practice: In Italy, for instance, Se Non Ora Quando—Factory, a group that split from Se Non Ora Quando over this issue, supports surrogacy, arguing that ‘the desire of becoming a mother and a father has acquired new meanings.’”[8]

Notably, in the state of New York, as recently as 2019 (a time when forty-seven US states had already legalized compensated gestational surrogacy), feminists, including Gloria Steinem, spoke out against the Child Parent Security Act, a proposed law that would legalize compensated surrogacy in New York: “Women’s rights scholars have argued that paid surrogacy turns women’s bodies into commodities and is coercive to poor women given the sizable payments it can bring.”[9]

Sadly, this view of surrogacy as it is practiced in some parts of the world is not altogether false. Perhaps the idea of child trafficking is exaggerated and just used by surrogacy opponents to foment more intense opposition. But the argument that, in some places in the world where surrogacy arrangements are made, there is an exploitation of poor women as well as a lack of ethical practices is an argument that is based in reality.

In India, surrogacy practices include large houses or “hospitals” where pregnant surrogates are housed until they give birth. The intended parents usually do not meet their surrogates and the surrogates are subject to the rules of the clinic, the medical treatment that the clinic provides, and the housing that the clinic deems appropriate. The surrogates are separated from their families, and they have little or no say in the process. They do not choose the parents for whom they carry a baby. They do not make choices about their medical treatment or their housing while they are pregnant.

In her book Surrogacy for All: Feminism against Family, Sophie Lewis states, “[A]dequate medical care for postpartum surrogates (certainly in India, Romania, Mexico, and Guatemala) is horrifyingly absent. Lack of informed consent appears depressingly endemic outside of the United States: workplace ethnographers from Bucharest to Bangalore have found that ‘most surrogates do not understand what surrogacy really entails.’”[10]

In Thailand, commercial surrogacy is prohibited. The ban on surrogacy was put into place soon after the Baby Gammy case. In this case, a commissioning couple from Australia conceived twins with the help of a Thai gestational surrogate. During the pregnancy, it was discovered that one of the twins had Down’s syndrome. The intended parents wanted to terminate the pregnancy, but the surrogate did not want to undergo a termination, as it was against her religious beliefs. Further, abortion was not legal in Thailand except in cases where the life of the mother was in danger or the pregnancy was the result of a sex crime. The intended parents took custody of the healthy baby girl but abandoned their son, who was born with Down’s syndrome.

It would be overly simple to look at the Baby Gammy case and just react to condemn surrogacy because such an outcome is even possible. However, it is more instructive to view the case in a way that would serve to improve upon the practice of surrogacy to make sure that such an occurrence will not happen again. There are ways in which a case like that of Baby Gammy might be avoided. With proper foundational work by the professionals working on behalf of the intended parents and the surrogate, the parties to the arrangement may be screened and matched on the basis of what they each believe they would and could do regarding abortion in the case of a birth defect. Also, the intended parents should have been trying to have a baby through surrogacy in a country where their wishes for a termination would have been at least legal, which was not the case in Thailand.

In stark contrast to these other countries where surrogacy arrangements are ethically questionable at best, the practices in the United States, monitored and discussed by professional organizations, lawyers, physicians and mental health providers, emphasize and advocate ethical practices in surrogacy. For example, the Society for Ethics in Egg Donation and Surrogacy (SEEDS) “is a nonprofit organization founded by a group of egg donation and surrogacy agencies, whose purpose is to define and promote ethical behavior by all parties involved in third party reproduction.” This organization was founded and continues to thrive with over 100 members, including reproductive clinics, surrogacy and egg donation agencies, lawyers, and other professionals working in the area of surrogacy. The express purpose of SEEDS is to promote ethical standards for the practice of surrogacy and egg donation in the United States.

In the United States, surrogates come to the process voluntarily in every way. They participate in all the decisions regarding the surrogacy journey, including choosing their intended parents, choosing their medical care, and having rights to decline medical care. They live at home with their families during their pregnancies, and they choose whom they will have in the birthing room. They have independent legal counsel to ensure fair gestational surrogacy agreements that include fair compensation for the disruption in their lives, the risks they are taking, and the expenses they incur as a result of engaging in a surrogacy journey.

In addition, in the United States, great care is taken to screen gestational surrogates and intended parents so that, when they are matched, they have the same ideas, beliefs, and perspectives on how the pregnancy will be managed. Of course, the surrogate has her own life, and she makes decisions about where she lives, what she eats, and which doctors she sees. But she also gets to know her intended parents. With the help of trained professionals, these people are matched and come together to bring a baby into the world. They are matched because they share similar views on what will happen under various scenarios that relate to the pregnancy, the health and well-being of the surrogate, and the health of the developing fetus. (See chapter 5, “Who Becomes a Gestational Surrogate?” and chapter 7, “The Work of the Surrogacy Agency,” for details on matching.)

Moreover, the feminists’ logic has little to no merit because the true feminist perspective argues for a woman’s autonomy when it comes to making decisions for her own body. A woman should have choices: the choice whether to terminate a pregnancy without governmental interference as well as the choice whether to become pregnant as a surrogate and to be compensated for her assistance in creating a family.

[1] S. Lewis, Full Surrogacy Now: Feminism against Family (London, UK: Verso Books), 30.

[2] Iver Peterson, “Baby M, Ethics and the Law,” New York Times, January 18, 1987, retrieved November 22, 2020, https://www.nytimes.com/1987/01/18/nyregion/baby-m-ethics-and-the-law.html.

[3] D. E. Seidelman, and A. L. Cirel, “The Child-Parent Security Act Is a Game Changer: Here’s What You Need To Know,” Law.com, New York Law Journal, April 27, 2020, retrieved November 23, 2020, https://www.law.com/newyorklawjournal/2020/04/27/the-child-parent-security-act-is-a-game-changer-heres-what-you-need-to-know/.

[4] See Family Court Act, Article 5C, Part 5, Compensation (NY CPSA § 581-502).

[5] NJ Rev Stat § 9:17-65 (2018).

[6] “Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation Replies to Certain Questions of the Day,” Vatican, 1987, retrieved November 26, 2020, http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-human-life_en.html.

[7] A. Momigliano, “When Left-Wing Feminists and Conservative Catholics Unite,” The Atlantic, March 28, 2017, 3, retrieved November 26, 2020, https://www.theatlantic.com/international/archive/2017/03/left-wing-feminists-conservative-catholics-unite/520968/.

[8] Momigliano, “When Left-Wing Feminists,” 3.

[9] V. Wang, “Surrogate Pregnancy Battle Pits Progressives against Feminists,” New York Times, June 12, 2019, retrieved November 27, 2020, https://www.nytimes.com/2019/06/12/nyregion/surrogate-pregnancy-law-ny.html.

[10] Lewis, Full Surrogacy Now, 32.