A comparison of surrogacy laws of the U.S. to other countries: should there be a uniform federal law permitting commercial surrogacy?

• Author: Guzman, Victoria R.

1. INTRODUCTION II. BACKGROUND--FOUNDATIONS OF SURROGACY A. Surrogacy: Global View B. Surrogacy: U.S. View III. ANALYSIS A. Lack of Regulation Leads to an Uncertainty of Rights B. Is Surrogacy Exploitation? IV. PROPOSAL A. Commercial Surrogacy Should Be Legalized B. Commercial Surrogacy Should Be Regulated C. How Should Commercial Surrogacy Be Regulated? V. CONCLUSION I. INTRODUCTION

   Renewed attention has been given lately to the law of surrogacy as the result of a recent high-profile scandal that dominated headlines throughout the summer last year. (1) The so-called Baby Gammy case stirred emotions and a demand for reform after an Australian couple refused to take home the twin brother of babies born to a Thai surrogate mother because the child had Down syndrome, leaving the birth mother to care for a baby she had never intended to raise. (2) The many twists and turns of the scandal--from the adoptive mother demanding the agency return their money to the discovery that the adoptive father had been previously convicted of child sexual abuse (3)--prompted lawmakers in both countries to push for a reform to prevent such cases from reoccurring. (4) The Thai government called for a ban on the international commercial surrogacy that had flourished in the absence of regulation. (5) Meanwhile, in Australia, lawyers and lawmakers proposed the ban on commercial surrogacy inside Australia be lifted in an attempt to discourage Australians from seeking surrogacy abroad. (6) The Baby Gammy scandal highlights the need for reform and the difficult task the law faces in resolving the thorny issues arising from the practice of surrogacy. (7)

   Surrogacy lies in an area where a new technology collides with old laws, challenging our notions of maternity and parenthood in ways that were inconceivable in the past. (8) Laws must adapt in order to manage the complexities resulting from its use. (9) Further complicating the matter is the ever-growing demand for surrogacy as more couples than ever before seek surrogacy and other forms of reproductive assistance as a means to start a family due to increasing rates of infertility and delayed parenting. (10) Adoption may not be a realistic option for many due to prejudice against those seeking to adopt, a lack of adoptable infants, and long waiting periods. (11) A complete prohibition on surrogacy as a practice would therefore effectively foreclose the possibility for many couples to have children altogether (12) and may give rise to constitutional challenges. (13) Contrasted against this, however, are opponents who view surrogacy, and in particular commercial surrogacy, as a gendered practice akin to prostitution that exploits vulnerable and impoverished women. (14)

   Balancing these considerations, Part II will provide a brief background and examine surrogacy from global and domestic views. Part III explores how other countries have dealt with a lack of regulation directly addressing surrogacy and responds to criticism that commercial surrogacy is exploitive. Part IV considers four different foreign surrogacy law models and proposes the ideal combination of models that the United States should implement. Finally, Part V concludes by suggesting that the United States should legalize gestational commercial surrogacy at the federal level and adopt a combination of Israel's and Ukraine's models with intent-based parentage as the basis for a uniform, federally-regulated surrogacy law.

2. BACKGROUND--FOUNDATIONS OF SURROGACY

   Surrogacy is a form of assisted reproduction where a woman agrees to carry to term a child that will be raised by another person or persons--commonly referred to as the intended parents or commissioning parents. (15) Surrogacy can be either traditional or gestational. (16) Traditional surrogacy occurs when the egg of the birth mother is used and creates a genetic tie between surrogate and child. (17) In gestational surrogacy, the birth mother is implanted with an embryo and is, therefore, not genetically related to the child. (18) The child could be genetically related to one or both of the intended parents or neither, if both the egg and sperm are from donors. (19) The majority of surrogacy agreements are gestational. (20)

   A surrogacy agreement can further be classified as altruistic or commercial. (21) In an altruistic surrogacy agreement, the surrogate mother is not paid, although she may be reimbursed for medical costs; a commercial surrogacy agreement, on the other hand, is more similar to a contract, wherein the surrogate mother will be paid a fee. (22) Commercial surrogacy, being the more controversial of the two classifications, is the focus of this comment.

   1. Surrogacy: Global View

      The issue of how the law can best address the competing interests of an infertile individual's innate desire to have children and the concerns of exploitation is a hotly contested subject. Currently, there is no general consensus on an international level regarding the ethics of surrogacy and whether it is acceptable in all forms. (23) The laws of foreign countries are wide ranging--from complete prohibitions of the practice to a thriving and legal industry operating without any regulation or oversight. (24) Many countries, such as Portugal, (25) Italy, (26) Spain, (27) Switzerland, (28) and France, (29) have a ban on both commercial and altruistic surrogacy, while Russia, (30) India, (31) and Ukraine (32) embrace both forms and view commercial surrogacy as a lucrative market.

      South Africa has legalized altruistic surrogacy with laws specifically addressing who can and cannot enter into a surrogacy agreement. (33) The United Kingdom has outlawed commercial surrogacy and held all surrogacy agreements to be unenforceable (34) but still allows citizens to form surrogacy agreements abroad. (35) Other countries have no laws regarding the practice, while Israel has a state-controlled surrogacy scheme, (36) which is discussed in greater detail below. The lack of uniformity between countries on surrogacy is further compounded by the lack of any international agreement directly addressing its use. (37)

   2. Surrogacy: U.S. View

      The United States is one of the only countries with no national law specifically addressing surrogacy. (38) Because the United States leaves the development of surrogacy laws to the states, it lacks the uniformity seen in many countries abroad. (39) Some states enforce a complete prohibition against all forms of surrogacy while others are more willing to embrace its use. (40) For example, Washington, (41) the District of Colombia, (42) Arizona, (43) Michigan, (44) North Dakota, (45) and Indiana (46) have statutes banning surrogacy as against public policy and may even impose criminal or civil penalties on those found to have entered into such agreements. Kentucky prohibits compensating the surrogate mother or an agency for agreeing to terminate parental rights. (47) Louisiana, (48) Nebraska, (49) and New York (50) have codified their opposition to surrogacy by refusing to enforce surrogacy agreements but have not banned surrogacy or made it criminal. Arkansas law provides guidance on parental rights arising under surrogacy agreements depending on the marital status of the intended parents. (51) Some states, in an effort to regulate surrogacy agreements, have strict statutes identifying who can enter into surrogacy agreements. (52) For example, in Texas, the intended parents of a child born to surrogacy must be married (53) and the intended mother must either be incapable of having children naturally or be incapable of carrying a child without risking the health of the child or herself. (54) The surrogate cannot be the genetic mother (55) and has to have had at least one successful pregnancy. (56) In addition, the court must approve the petition for a surrogacy agreement. (57) Florida, (58) Illinois, (59) and California (60) have statutory requirements that must be satisfied before a surrogacy agreement is deemed valid. The remaining jurisdictions have unclear or absent laws and leave children, surrogates, and intended parents with uncertain rights. (61)

      The Uniform Parentage Act ("UPA") proposed one solution to the lack of uniformity of U.S. surrogacy laws. The UPA would resolve issues of legal parentage by requiring the intended parents receive a court order stating that they are the legal parents of the resulting children as stated in the surrogacy contract for the agreement to be held enforceable. (62) The UPA would allow compensating surrogates (63) and would require parties to a surrogacy contract to have been present in the state for ninety days to deter forum shopping. (64) However, only a handful of states have adopted this approach, and, even then, they have adopted a modified version. (65)

3. ANALYSIS

   1. Lack of Regulation Leads to an Uncertainty of Rights

      The current silence and lack of coherence of surrogacy laws in the United States will lead to confusion, heartache, and unnecessary litigation. (66) Regulation would protect surrogates from abuse and ensure proper medical care and standards. (67) Additionally, absent clear guidelines, intended parents are forced to gamble with their parental rights. (68)

      The lack of cohesion among the states encourages forum shopping and forces individuals to cross state-lines to become parents in an effort to take advantage of the friendlier surrogacy laws. (69) Alternatively, it may incentivize them to go abroad to enter into international surrogacy agreements that have the potential to create confusion regarding the citizenship of any resulting children and may be formed in countries lacking protective laws for surrogate mothers. (70) Furthermore, absent uniform laws, where surrogacy agreements are made and performed in one state, the parents who then bring the child to another state, where such agreements are not recognized or are potentially criminalized, could face uncertain parental rights. (71) Finally...