Compensated Surrogacy

• Jurisdiction: United States,Federal
• Citation: Vol. 89 No. 4
• Publication year: 2021

COMPENSATED SURROGACY

Martha A. Field(fn*)

INTRODUCTION

The question that was put to us is whether the widespread legalization of gay marriage, supported by the Supreme Court's decision in United States v. Windsor,(fn1) means that compensated surrogacy should be more broadly legalized. This essay takes the position that Windsor has little relevance to surrogacy, which will continue to be governed by state rather than federal law. States do, and will, follow a wide spectrum of policies on surrogacy, ranging from banning it and making it illegal to promoting it by enforcing surrogacy contracts as ordinary commercial transactions. The legalization of gay marriage need not affect states' surrogacy laws.

It is easy to understand why gay couples want to be able to have genetically related babies; their reasons are the same as other couples', and the desire is widespread. Why would anyone want to interfere with a procedure that helps create loving and happy families and allows many men, single or married, to have a genetically related child? From that perspective, it seems cruel to deny this procedure to gay male couples, to couples in which the wife is infertile, or to single persons, for that matter.(fn2)

But surrogacy is not problem-free. It raises serious issues of commodification-of sex, of childbirth, of birthmothers, and of children-by allowing contracts, sales, and money to govern these once noncommercialized areas of life. Such commercialization of childbirth could profoundly affect the kind of society in which we live. Surrogacy also arguably exploits women instead of liberating them. Accordingly the calls to legalize surrogacy further are joined by calls to eliminate surrogacy altogether-or to restrict it as fully as possible.

Before evaluating the competing concerns, I will quickly review the background of surrogacy law in the United States and describe the state of surrogacy and surrogacy law today. I then will discuss why Windsor and the gay marriage decisions in general do not affect surrogacy law and how the concerns of commodification of childbearing and exploitation of vulnerable birthmothers may legitimately discourage states from adopting strong pro-surrogacy policies. I conclude that there is no necessity for states to liberalize their surrogacy laws in view of the widespread access to surrogacy that already exists.

I. “TRADITIONAL SURROGACY”

Surrogacy first came to widespread public attention in the United States in the 1980s, especially in connection with the Baby M case,(fn3) which involved what now is often called “traditional surrogacy.” Typically the husband of an infertile wife furnishes his sperm to a woman (“surrogate”) who supplies half of the genetic material for the baby-to-be as well as carrying the pregnancy and enduring the delivery. The “traditional surrogate” (who is also the genetic mother and the birthmother) is compensated for her services and expenses and is expected to turn the baby over to the contracting couple at birth. The vast majority of birthmothers do so, and the arrangement is considered successful; judicial enforcement of the contract is unnecessary.

The Baby M case concerned the problem that arises when the birthmother changes her mind and wants to keep the baby. Mary Beth Whitehead had entered into a surrogacy agreement with William and Elizabeth Stern, but after the child's birth, Ms. Whitehead decided that she could not give up her child.(fn4) The central issue in the Baby M litigation was whether she or the Sterns would obtain custody.(fn5) The New Jersey Supreme Court ruled that the surrogacy contract was “void” as a violation of public policy and that custody would be decided, not on the basis of the contract, but instead as it usually is in custody contests between genetic parents, on the basis of the “best interests” of the child.(fn6)

In 1988 I wrote a book on the subject.(fn7) My recommendation was that states recognize surrogacy but not enforce surrogacy contracts until and unless the mother voluntarily turns the child over to the contracting parents after birth.(fn8) The birthmother would not be committed on the basis of a promise made before the baby was born, just as a birthmother is not when she promises an adoption.

Some proponents of surrogacy have considered that proposal “anti-surrogacy” or unfriendly to surrogacy,(fn9) but I consider nonenforcement a neutral position for a state to adopt. The state neither endorses and encourages surrogacy by enforcing surrogacy arrangements and treating them as ordinary contracts, nor does it make them illegal. Paid surrogacy can and does continue under such a nonenforcement regime. True, it would be too risky to enter into a contract if the genetic father were required to pay child support even when the birthmother reneged on the deal.(fn10) I recommended that, if state legislatures wanted surrogacy to continue as an option, legislatures should give the intended father the option to walk away, rather than serving as a parent (by visiting and paying child support, for example).(fn11) Surrogacy would continue, with persons taking every precaution to choose a surrogate who would not change her mind, a precaution that is still important in today's world.

II. AN OVERVIEW OF SURROGACY AS IT IS PRACTICED TODAY

I will not repeat here my arguments for states to recognize and regulate surrogacy without enforcing surrogacy contracts over a birthmother's objection, and arguably not all of them apply to surrogacy today. The biggest change in surrogacy practice is that “traditional surrogacy” has been largely replaced by “gestational surrogacy,” in which the birthmother has no genetic tie to the child.(fn12) She is simply the birthmother or gestator.

Whether to enforce a contract when the birthmother changes her mind remains an issue. There once was apparent unanimity for nonenforcement of surrogacy contracts,(fn13) but in 1990 the California Supreme Court ended that consensus in Johnson v. Calvert,(fn14) a “gestational surrogacy” case. In Johnson v. Calvert, the opposite-sex couple who contracted for surrogacy furnished all the genetic material, so the birthmother had no genetic tie to the baby.(fn15) When the birthmother attempted to retain the newborn, the California courts enforced the surrogacy contract, granting custody to the contracting couple.(fn16) The parties' original intention controlled.

The Johnson v. Calvert precedent was, however, confined to California. Ever since that decision, states have taken different positions on whether to treat surrogacy as a legitimate commercial enterprise;(fn17) or to adopt a strategy of nonenforcement (by calling the contract void, for example or by using an adoption model for surrogacy);(fn18) or even to make surrogacy illegal and punishable.(fn19) States also have differed (in court decisions as well as written laws) on whether the law should treat gestational and traditional surrogacy alike,(fn20) and also on whether the law should draw a distinction between unpaid or “altruistic” surrogacy and compensated surrogacy.(fn21) But compensated gestational surrogacy is the main focus of both those who want surrogacy to be more broadly available and those who would like to cut back on it, and it is overwhelmingly the kind of surrogacy that is practiced today.(fn22)

Surrogacy is run largely by private for-profit agencies which, for a sizeable fee, bring together the contracting parents-to-be and the birthmother.(fn23) But because gestational surrogacy is the method of choice, an egg donor must often be obtained as a third contributor to the creation of the child. Couples in which the wife is infertile and gay male couples will require an egg donor and usually they, often with the help of an agency, will arrange to purchase eggs. Gay male couples (married and unmarried) constitute a substantial part of domestic surrogacy business today.(fn24)

A. The Availability of Surrogacy

Surrogacy has changed significantly since the 1980s, both domestically and abroad. In the United States, surrogacy laws vary widely. Some states are quite favorable to the practice, while others go so far as to criminalize it. An international market for surrogacy has also emerged, with a few countries currently marketing themselves as “surrogacy destinations.”(fn25) Couples can go to these destinations to enter into a surrogacy contract at a lower price than they might find in the United States. Ultimately, these different surrogacy options make commercial surrogacy available to individuals and couples who have the money to afford it.

1. Availability in the United States

In the 1980s and before, state laws on surrogacy were largely indeterminate, but in general, surrogacy contracts were legal but unenforceable.(fn26) Internationally, the United States was the country deemed most accepting of surrogacy.(fn27) After Baby M and Johnson v. Calvert, state legislatures began to adopt more explicit and focused positions on surrogacy.(fn28) In states where the legislature passed no law, state courts were presented with cases in which they had to decide whether surrogacy was legal and enforceable or was not.(fn29) (A decision to criminalize it would have to come from the legislature.)

A number of states currently have laws in place that affirmatively allow surrogacy to take place within their borders. The state that currently is the most friendly to surrogacy is California,(fn30)...