AuthorKennedy, Leah

PROLOGUE: ROGER, HUEY, AND SAFFRON 189 INTRODUCTION 190 I. WHAT IS SURROGACY? 191 II. A HISTORY OF SURROGACY LAWS IN THE U.S. AND IN CALIFORNIA 193 A. Surrogacy in the United States 194 1. Baby M and the Aftermath 195 2. Shifting Public Attitudes 197 B. Surrogacy in California 198 III. NAVIGATING "SURROGACY-FRIENDLY" CALIFORNIA AS INTENDED PARENTS 202 A. Scarce Legal Resources for Traditional Surrogacies 202 B. Scarce Medical and Psychological Resources for Traditional Surrogates 203 B. Expenses Involved in Surrogacy Arrangements 205 C. Resistance to Nontraditional Family Structures 206 IV. RISKS INVOLVED IN SURROGACY 207 A. Surrogates Changing Their Minds 208 B. Medical Risks of Gestational Surrogacies 210 V. LESSONS FROM THE U.K. 211 CONCLUSION 214 PROLOGUE: ROGER, HUEY, AND SAFFRON (1)

Roger and Huey live in an old cabin with their three dogs and three cats, and behind their home is a barn covered in red chipped paint and filled with materials for various unfinished projects: pieces of old furniture, piles of wood, countless knickknacks, and dusty boxes of unworn baby clothes, untouched since their last attempt at starting a family had fallen through. This time, the pregnant woman with whom they had made an adoption agreement had decided to keep the baby. It was not an honest change of heart; Roger and Huey later learned that the same woman had promised the child to another couple who were similarly left in the lurch. To make matters worse, the adoption agency that they worked with declared bankruptcy approximately two years later. (2) The whole ordeal cost Roger and Huey approximately $25,000, in addition to immense emotional turmoil. (3)

Previous attempts at starting a family had begun over fifteen years ago, with a friend who was potentially interested in being a surrogate. Roger and Huey also attempted the foster adoptive process with the State of Louisiana. Their caseworker frequently provided inaccurate information and created artificial barriers to their being placed with a child (such as mis-measuring their home and claiming that it did not meet the requirements for housing a child). "They had issues with cucumbers in our yard but were not bothered by a 68-year-old-or-so man wanting a 16-year-old in their house," Roger stated, referring to someone they heard about who had been placed with a child and was later arrested for abusing her. "We were, for some reason, the scary people." In retrospect, Roger and Huey believe that it was never the agency's intention that they would be placed with a child, especially given then-Louisiana governor Bobby Jindal's hostility to gay adoption. (4)

Roger and Huey are not unique in terms of their struggles to start a family, as gay couples are often the targets of "state-sanctioned discrimination." (5) Great strides have been made in recent years to enable gay parents to adopt, but gay parents nonetheless often receive pushback. (6) Because faith-based agencies often play a significant role in placing children with families, gay intended parents can be subject to discriminatory policies. (7) Although some agencies are shifting their policies in order to work with gay couples, (8) the Supreme Court's recent decision to side with a Catholic adoption agency that refused to work with same-sex couples on the basis of religious belief suggests that this barrier is unlikely to disappear entirely in the immediate future. (9)

In recent years, Roger and Huey began to come to terms with the past. "I was really starting to be happy with the idea of becoming eccentric old gays together," Huey joked. But then Saffron, a friend and former student of Roger, approached the couple with an unexpected offer. Saffron had no desire to herself be a mother, but she had always wanted to experience pregnancy. After years of pondering the possibility, she had found the courage to pop the awkward question: "Can I have your baby?"

The proposal was a simple one. Saffron considered Roger and Huey her chosen family and wanted to perform the surrogacy altruistically, knowing that she would have a part within the family without taking on the full responsibilities of motherhood. Due to a desire to avoid any complex medical interventions, as well as a genuine curiosity to meet her biological offspring, Saffron wanted to use her own eggs rather than take the more invasive--and far more costly--gestational surrogacy route. Saffron also happened to live in California, which had a reputation as a surrogacy-friendly state. (10) Roger and Huey were hesitantly hopeful.

Unfortunately, Roger, Huey, and Saffron would discover that California's "surrogacy-friendly" laws were ill-suited for (and sometimes even hostile to) their situation. Their surrogacy journey would become a fascinating and frustrating glimpse into the expansive gatekeeping role of attorneys within the family-building context and the ways in which the most "surrogacy-friendly" statutory scheme in the world falls short.


This paper explores California's surrogacy process from the perspective of Roger, Huey, and Saffron. It discusses how California's statutory scheme is primarily designed to serve wealthy aspiring parents and commercial gestational surrogates rather than lower-income families who intend to create unique family structures through the more affordable traditional surrogacy route. This paper will explain how California's laws, drafted by attorneys who specialize in commercial gestational surrogacy arrangements, are designed to make the process more certain for wealthy intended parents, but as a result they increase expenses and make the process feel adversarial and transactional. Profit motives can easily usurp the process; attorneys exercise substantial power beyond merely providing legal counsel and financially benefit from a provision that requires the hiring of separate counsel for intended parents and surrogates. This contrasts considerably with the approach of countries like the U.K., where there is no legal distinction between traditional and gestational surrogacies and it is illegal for third parties to profit from surrogacy arrangements.

Part I provides an overview of surrogacy and explains the terminology that will be used throughout the paper, with particular emphasis on the legal distinction between traditional and gestational surrogacy. Part II briefly describes the history of surrogacy in the United States, with particular focus on California's "surrogacy-friendly" statutory scheme. It explores the legislative history behind California's laws, including the tendency for changes in surrogacy laws to occur after worldwide scandals. Part III describes the practical impact of California's statutory scheme for families like Huey, Roger, and Saffron, such as difficulty finding counsel, difficulty attaining medical and psychological support, and increased costs. It also discusses how traditional family structures are increasingly less common, particularly in queer communities, and explains why some practitioners are hesitant to accommodate these new structures. Part IV addresses the common argument that traditional surrogacy is more psychologically dangerous and risky, and it explains some of the risks involved in gestational surrogacy arrangements. Finally, Part V explores approaches to surrogacy in the U.K. and suggests a need for alternative systems that support "altruistic" surrogacy arrangements and traditional surrogates.


    Surrogacy is a method of family building, often used by people who cannot reproduce through more traditional means. It is an arrangement whereby a person (the "surrogate") bears a child for another person or persons (the intended parents), and the intended parents become the legal parents of the resulting child. Surrogacy has a complicated history within the U.S. and throughout the world, as it challenges fundamental notions about the meaning of parenthood, and motherhood in particular. (11) This paper uses the following terms to differentiate between the different forms of motherhood:

    1. Biological mother: The person who donates the ovum.

    2. Gestational mother: The person who carries the pregnancy to term and delivers the child.

    3. Social mother: A person who rears the child and identifies with the term "mother."

    In a traditional nuclear family, a mother is all three, but in a surrogacy arrangement, the different forms of motherhood are distinguished, and there may be no social mother at all. (12) Surrogacy arrangements fall into two main categories: traditional and gestational. In traditional surrogacy, the surrogate is both the biological and gestational mother of the child. (13) A traditional surrogacy arrangement typically results from the surrogate's egg and either the intended father's sperm or donated sperm from another party. (14) In gestational surrogacy, the surrogate is not biologically related to the resulting child. (15) In such an arrangement, the egg and sperm may be the genetic material of the intended parents or of donors. (16) Thus, the social mother and biological mother may be the same or different people in a gestational surrogacy arrangement.

    Traditional and gestational surrogacy agreements are distinguished under the laws of various jurisdictions within the U.S. (17) Jeffrey A. Kasky and Marla B. Neufeld write that traditional surrogacy is actually "closer to adoption." (18) In many states, though not all, because of a traditional surrogate's genetic link, an adoption proceeding is required to recognize intended parents without genetic links as legal parents. (19) Thus, like parties in a pre-birth adoption agreement (which is not enforceable against the birth mother if she were to change her mind), intended parents in traditional surrogacy arrangements have no assurance that their pre-birth agreements are enforceable, unlike intended parents in gestational surrogacy arrangements. (20)

    The legal distinction between traditional and...

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