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New Cannibal Markets

Jean-Daniel Rainhorn
Samira El Boudamoussi

Part 2. Wombs for Rent

States of Confusion: Regulation of Surrogacy in the United States

Seema Mohapatra

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1Some countries, including Switzerland, Germany, Spain, France, Greece, and Norway, ban commercial surrogacy (Patton 2010, 523). Others, such as India and the Ukraine, have actively tried to be seen as commercial surrogacy destinations (Mohapatra 2012, 412, 432–437, 441–448). Unlike either of these approaches, the United States (US) has no national stance on surrogacy. In fact, there are no national laws or regulations related to surrogacy in the US (Margalit 2014). Instead, each of the fifty states has its own approach to surrogacy, with some states embracing commercial surrogacy and others banning all types of surrogacy (Patton 2010, 507, 528). This chapter provides an overview of surrogacy in the US, focusing particularly on California, which has emerged as an international surrogacy hub due to its permissive laws regarding commercial surrogacy.

2Since 1985, the US has had a fluctuating relationship with commercial surrogacy. In 1985, the notorious and controversial Baby M case in New Jersey seemed to signal the death of surrogacy in the US. The Baby M case involved a traditional surrogacy arrangement where the surrogate mother, Mary Beth Whitehead, contracted with a married couple, the Sterns, to become impregnated (with her own egg and Mr. Stern’s sperm) for a fee. Mary Beth Whitehead was carrying the baby for the Sterns, and she agreed to give up all parental rights after the baby was born, even though she was biologically related to the baby. Whitehead had a change of heart as the pregnancy progressed and refused to give up the baby to the Sterns. A soap opera of sorts resulted, with Whitehead going into hiding with Baby M. Even after Baby M was found, a protracted legal battle ensued. The Baby M case ended with the Sterns being granted custody of Baby M and Whitehead earning visitation rights. Experts predicted that the case was the beginning of the end of surrogacy. New York and New Jersey banned commercial surrogacy altogether in the aftermath of this case (Mohapatra 2012).

3Although the Baby M case caused an uproar among the public, surrogacy has thrived in recent years in some states due to the rise in gestational surrogacy. In a gestational surrogacy arrangement, the woman formerly known as a “surrogate mother” because her own egg was used, is now typically referred to as the “gestational carrier” (De Vito 2011, 1873). The gestational carrier essentially rents her womb to the intended parents, and her womb is implanted with an embryo (created via in vitro fertilization with the intended parent’s sperm and egg or with donor gametes). Some see this commercial surrogacy arrangement as a form of commodification of women’s bodies, because the surrogate is charging money to rent out her womb. States with this perspective ban commercial surrogacy.

4Surprisingly to many, the US is a hub of surrogacy tourism, especially surrogacy friendly states such as California. When one thinks about international surrogacy, the typically scenario involves a couple from a more wealthy country, such as the US or England, traveling to a less wealthy country, such as India, to have a surrogate bear a child on their behalf for cheaper costs and perceived less regulatory hassle. Although that scenario is common in the rapidly growing surrogacy market, the US has also emerged as an international surrogacy destination (Mohapatra 2012). Currently, no regulatory body tracks exactly how many international parents commission surrogate babies in the US. Recent accounts suggest that this practice represents a growing portion of the surrogacy market in the country. Some agencies in California approximate that half of their recent surrogate births were for international parents (Mohapatra 2012).

5There are many reasons why this trend has emerged. First, the US allows for birth citizenship for a baby born in the US, regardless of the baby’s parents’ country of origin (Price 2013, 443). Therefore, unlike in some countries, such as India, where surrogacy arrangements have created stateless babies such as Baby Manji (Smerdon 2008–2009, 15, 24), babies born in America are citizens of the US. Also, many states allow for commercial surrogacy, and some states allow unmarried or lesbian, gay, bisexual, or transgender (LGBT) individuals to be an intended parent. Many individuals seek out surrogacy arrangements in the US because such arrangements are illegal in their home countries or they (particularly LGBT individuals) are banned from participating in surrogacy agreements in their home countries. Additionally, some choose the US because they believe that it has a technologically superior health-care system with advanced fertility techniques and high-quality health-care for surrogates, compared with countries such as India.

6However, there are also several negative aspects to the surrogacy regime in the US. First, it is one of the most expensive in the world. Surrogacy is costly in the US because typically each of the parties involved in a surrogacy arrangement is paid. The intended parents who are using an egg donor will pay her approximately $10,000 (Hartocollis 2014). The in vitro fertilization (IVF) process is also expensive. Only a few states require infertility coverage to be paid for by insurance. The American Society of Reproductive Medicine (ASRM 2015) estimates that the average price of an IVF cycle is $12,400 in the US. A gestational carrier earns at least $30,000 for her services in being implanted with the embryo, carrying the baby to term, and delivering the baby (Hartocollis 2014). There are numerous agencies that pair gestational carriers with intended parents, and some agencies charge upwards of $20,000 for their services (Surrogacy Source 2014). Attorneys fees can add another $5000. With all the parties involved and paid, a surrogacy arrangement in the US typically costs between $ 75,000 to $120,000 (Hartocollis 2014).

7Another problem with surrogacy in the US is the inconsistency of the laws that exist with regard to it—even between states just a few miles from one another. Each state creates its own family law regime, which results in fifty different definitions of who a parent is and what rules there are regarding whether surrogacy is legal or illegal. If there is a conflict of law between states, the law of the state where the surrogate lives and delivers usually governs. Therefore, usually surrogacy agreements contractually dictate that the surrogate cannot travel during her pregnancy to deliver to ensure favorable state law. These types of contractual agreements have been recognized by the courts in many states. The next section provides an overview of surrogacy regulation in different states.

The legal landscape for surrogacy in the US

8The US approach to surrogacy is a mishmash with each state deciding how to view surrogacy and fertility tourists within its borders. Although commercial surrogacy is accepted in many states, some states still hold the practice to be illegal (Morrissey 2011, 609, 671–672). Among those states, some impose criminal sanctions, while others merely refuse to enforce commercial surrogacy arrangements (Palmer 2011, 895–896). For example, New York has ruled all surrogacy agreements void, unenforceable, and contrary to the state’s public policy regardless of their commercial or altruistic nature. Six years after the Baby M case, New York outlawed commercial surrogacy in the aftermath of the trial (N.Y. Dom. Rel. Law § 123 [McKinney]). Nevertheless, the New York Supreme Court recently held that a genetic mother who used a gestational carrier could place her own name on her child’s birth certificate (Mohapatra 2012). This, combined with recent (and so far unsuccessful) legislative efforts to allow surrogacy, could signal that New York is beginning to soften its prohibition of surrogacy.

9Some states ban all types of surrogacy. In addition to New York, these include Delaware, Indiana, Louisiana, Michigan, Nebraska, North Dakota, and Washington DC (Morrissey 2011, 671). Arizona and Indiana invalidate all surrogacy agreements by statute (Arshagouni 2012). The District of Columbia, New York, and Michigan not only declare surrogacy agreements void but also impose criminal and/or civil penalties (Palmer 2011). Some states refuse to enforce surrogacy agreements, even if they were created in states where they are legal. Others, such as Florida, New Hampshire, Tennessee, Texas, Utah, and Virginia, allow for enforcement of gestational surrogacy agreements only if the intended parents are married (Morrissey 2011). California, Nevada, and Illinois have surrogacy statutes that do not require an intended parent to be married (Morrissey 2011). Some states—Florida, New Hampshire, Texas, Utah, and Virginia—also require that the intended parents have a medical need for surrogacy (Morrissey 2011). Such a requirement does not allow LGBT individuals to seek surrogacy in those states, although that may be changing with gay marriage being recognized in more states. On the national level, “no uniform federal legislation exists that regulates the legality or enforceability of commercial surrogacy contracts”—so…“individual state laws are widely disparate” (Drabiak et al. 2007, 300–301).

10There are a few other states that are also seen as surrogacy friendly, such as Illinois and Nevada. Nevada has recently passed a new gestational surrogacy statute, A.B. 421 (NV LEGIS 213, 2013). The statute, which pertains only to gestational surrogacy, allows any type of intended parents to be named on the birth certificate. However, Nevada does not allow surrogates to be paid for their services, so it is unlikely that it will become a surrogacy destination.

11Additionally, only a few states—California, Georgia, Connecticut, Minnesota, and Arkansas—allow a couple or single person, if not genetically related to the child, to have their names on the birth certificate without a full adoption (Hofman 2009). In addition to this, California has other protections in place for intended parents, which also makes it a favorable state for commercial surrogacy.

California: leading the way in commercial surrogacy

12California has the richest case law and history with surrogacy in the US and is often thought of as the country’s “surrogacy capitol.” California has one of the most legally permissive approaches to surrogacy when compared to other states (Arshagouni 2012). Unlike India and the Ukraine, and other countries competing to attract intended parents as fertility tourists, California’s liberal policies do not appear to be aimed at drawing international or intra state intended parents. Instead, the California courts and legislature appear to be more interested in allowing intended parents of all types—whether single, old, gay, straight, or married—to participate in the surrogacy process. However, because California’s policies protect intended parents more than many other states, and definitely more than other countries, intended parents from other states and other countries have been seeking out California as a surrogacy destination.

13Sir Elton John and his partner, arguably the most famous reproductive tourists, made international headlines by traveling from their native England to California to commission a child using a gestational surrogate (Mohapatra 2012). Presumably, Elton John chose California as his surrogacy destination because England does not allow commercial surrogacy. Despite the high costs for commercial surrogacy in California, many regard the state as “the nation’s hub for surrogate pregnancies” because of “its well-established network of sperm banks, fertility clinics, and social workers” and regulations favoring intended parents (Mohapatra 2012). California is also emerging as a leading destination for wealthy Chinese couples who cannot biologically have a second child but can afford the prices in the US, seek US citizenship for their babies, and can afford the one-child penalty (Li 2012).

14Within the US, California has a long history with surrogacy. Due to its developed surrogacy system, it is perceived as an attractive international surrogacy option for those who can afford the high cost of surrogacy in the US. California is known as a surrogacy-friendly state (Scott 2009, 109, 121–123). California’s surrogacy regime has been based on its version of the Uniform Parentage Act (UPA), which is codified in Cal. Family. Code § 7600, rich case law interpreting its UPA, and now a surrogacy statute. There are many agencies and surrogates in California so it is also a more popular destination for this reason.

Case law

15There have been many published decisions about surrogacy in California. Johnson v. Calvert, the most influential surrogacy case in the US, was a California case that, in 1993, established the importance of intent within an agreement of surrogacy. Johnson v. Calvert was a case that involved an agreement where the surrogate was to be implanted with an embryo made from the intended parents’ sperm and egg (Johnson v. Calvert, 851 P.2d 777–778, 1993). The court held that the intent of the parties at the time of the agreement was the deciding factor in determining who the legal parents should be (ibid., 782). The court said, “A woman who enters into a gestational surrogacy arrangement is not exercising her own right to make procreative choices; she is agreeing to provide a necessary and profoundly important service without (by definition) any expectation that she will raise the resulting child as her own” (ibid., 787). This was a seminal case in the history of surrogacy in the US and helped the public feel more comfortable that intended parents would not have their babies taken by a surrogate who changed her mind.

16 In re Marriage of Buzzanca was another California case that was important because it allowed intended parents to be genetically unrelated to the child (In re Marriage of Buzzanca, 61 Cal. App. 4th 1410, 1998). The case involved a couple, Luanne and John Buzzanca, who procured both a sperm and egg donor in order to create an embryo to implant in a gestational surrogate. After implantation, but prior to the child’s birth, the Buzzancas separated and John disclaimed any responsibility of the child. The issue before the trial court was who had legal parentage of the child. The court allowed a stipulation stating that the gestational surrogate was not the mother. They then ruled that Luanne was not the mother because she had neither contributed genetically by providing the egg nor given birth. They also found that John was not the father because he had not contributed the sperm, and therefore had no genetic ties to the child. The court also noted that neither the egg nor the sperm donors were legal parents under the law because they consented to procreate a child for someone else who intended to raise the child. By the trial court’s ruling, it looked as if the child had no legal parents. The California Court of Appeal disagreed with the trial court’s view. They held that when a woman conceives a child through artificial insemination with semen donated by a man other than her husband, the husband is treated as the child’s natural father so long as he consented to the conception. The Court of Appeals ruled that this law was also applicable to IVF using a donor egg and sperm. Therefore, John Buzzanca was determined by the court to be the legal father of the child. Turning to determination of legal maternity, the court noted that this can be determined in multiple ways. First, under the facts in Buzzanca, Luanne could be viewed as similar to a husband in an artificial insemination case, and therefore permitted to voluntarily consent to being the mother of a child not biologically related to her. Luanne consented to being the mother of the child, but even if she had not, the court found that maternity can be determined by intent according to Johnson v. Calvert. In Buzzanca, the child would never have been born if the Buzzancas had not initiated and agreed to the procedure. Luanne intended to be the mother of the child, and John intended to be the father of the child. Therefore, the court ruled that the Buzzancas were the legal parents of the child. The California court held that parents cannot, by agreement, limit or abrogate a child’s right to support.

17In recent years, the California court has also been presented with the legal and natural parentage question within same sex relationships, establishing that women as well as men cannot waive parental responsibility (K. M. v. E.G., 117 P.3d 673, Cal. 2005). In K.M. v. E.G., the court addressed the parental rights and obligations of a woman with regard to a child born within a lesbian relationship. In this case, K. M. supplied her ova to impregnate her lesbian partner in order to produce children who would be raised in their joint home. K.M. signed a waiver to relinquish her parental rights, but the court did not give this waiver any credence. The court stated that “parents cannot, by agreement, limit or abrogate a child’s right to support” (ibid.).

18As these cases illustrate, California has had a well-developed body of law in surrogacy for several decades. However, California’s surrogacy statute has only been in effect since January 2013, after a notorious incident in which surrogacy attorneys were taking advantage of weaknesses in the surrogacy laws of California (Mohapatra 2012).

19In what has been described as a “baby-selling ring,” Theresa Erickson and Hillary Neiman, two well-known surrogacy law attorneys, and Carla Chambers, a six-time surrogate, recruited American and Canadian women between the years 2005 and 2011 to purportedly serve as surrogates (Mohapatra 2012). According to Erickson, Chambers, and Neiman’s admissions in plea agreements with federal prosecutors, the three women arranged for the surrogates to fly to Ukraine to be implanted with embryos from donor eggs and donor sperm. Erickson, Chambers, and Neiman also promised these recruits between $38,000 and $45,000 for their services, which was a much higher rate than is typical for surrogates in the US. Erickson, Chambers, and Neiman likely picked Ukraine as a destination because of its lax regulations, the availability of white egg and sperm donors, and willingness of local clinics to implant women with embryos without proof of a surrogacy agreement. At the time these embryos were implanted and for months afterward, these so-called “surrogates” carried fetuses for which there were no intended parents or surrogacy agreements. Instead, Erickson, Chambers, and Neiman waited until the women were in their second trimester of pregnancy, when the chance of miscarriage was smaller, and advertised to potential adoptive parents that a “Caucasian” infant was available, with “high expenses” due to a surrogacy arrangement that “fell through.” The women told the same story—that the intended parents no longer wanted the baby—to numerous potential adoptive parents over six years. Additionally, they informed prospective parents that the parents would be able to choose their not-yet-born child’s gender. This arrangement led to the placement of at least a dozen babies, and potential adoptive parents paid from $100,000 to $150,000 to assume the supposedly failed surrogacy arrangements. Under California law, it is legal to pay a surrogate to carry a child as long as a surrogacy agreement is in place prior to conception. However, if a woman is carrying a child and wishes to give it up for adoption, it is illegal to pay her beyond her medical expenses. The reason for the distinction is that it is considered human trafficking to seek to adopt a baby for a price after its conception. To avoid these regulations, the women flew the “surrogates” to Ukraine for their implantation. Erickson then pre-dated the surrogacy agreements and falsely represented to the San Diego Superior Court that the infants were the result of surrogacy arrangements in place at the time of conception. Erickson was filing petitions with the local court seeking pre-birth judgments on behalf of the new intended parents, falsely warranting their participation from the beginning.

20Although California has a very sophisticated legal system relating to family building via surrogacy and adoption, the women picked California as the place where the surrogates would give birth because of one particularly permissive requirement. Unlike in most US states, in California intended parents of a biologically unrelated baby carried by a surrogate may be listed on a birth certificate without going through a legal adoption. These attorneys capitalized on their knowledge of inconsistencies between adoption and surrogacy laws in two countries to profit from baby-selling transactions. The lack of oversight in Ukraine allowed the implantation to take place. Despite California’s very sophisticated legal system relating to family building via surrogacy and adoption, the permissive birth certificate requirements nevertheless allowed Erickson to defraud the system.

California’s surrogacy statute

21In the wake of the scandal, the California legislature felt compelled to act (Daar 2012). A new law, A.B. 1217 (2012), was passed to react to this baby-selling scandal and to thwart the selling of ART offspring. The legislative history of the bill is interesting because it was actually drafted in February 2011 as a comprehensive new law governing assisted reproduction, well before the baby-selling surrogacy scandal was revealed. At that time, it was a thirty-four-page bill that regulated all aspects of assisted reproduction, including requiring intended parents to undergo a mental health evaluation. If that original bill had been passed, it would have been an enormous change in the US, which is often referred to as the Wild West in assisted reproduction, due to the lack of regulation generally compared with other countries. Because the bill was so broad and intrusive, many parties found reason to lobby against the bill and it looked like it was going to die. After Erickson was sentenced to prison in February 2012, A.B. 1217 was rewritten. After this story came to light, there was a legislative push to put something in the books to help prevent this sort of thing, and this reactive statute attempted to restore or preserve California’s position as a surrogacy-protective state. It was pared down from thirty-four pages to a mere two pages. Essentially, the statute codifies existing California law that already recognizes the validity of gestational surrogacy arrangements and the parental relationships that flow from these agreements.

22Professor Judith Daar has facetiously referred to the statute as “nothing more than a full-employment act for assisted reproductive technology lawyers” (A.B. 1217, 2012). This is because the bill requires a surrogate mother and the intended parent or parents to be represented by separate independent counsel prior to executing an assisted-reproduction agreement for a gestational carrier (A.B. 1217, 2012). To avoid the Erickson baby-selling situation, the law prohibits any administration of medicines or embryo transfer procedures until full execution and notarization of the agreement. Under the statute, the parent-child relationship can be established in the agreement before the child’s birth. A copy of the agreement must be filed with the court, and the records are sealed to all but the intended parents, surrogate, attorneys, and the state Department of Social Services.

23In addition, the legislation clarifies the meaning of “intended parent” (A.B. 1217, 2012). The statute notes that the California Family Code Section 7690(c) provides that an “Intended Parent” is “an individual, married or unmarried, who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction.” Defining “Intended Parent” as an “individual” whether “married or unmarried,” alters the traditional conceptions of who is a parent, minimizing the potential for discrimination against single or unmarried intended parents and same-sex domestic partners (Vorzimer and Randall 2013).

Next steps

24Although the California statute is well meaning, it does not go far enough to really improve commercial surrogacy arrangements. Unfortunately, although the statute does protect unmarried intended parents, there is no protection for surrogates in the new legislation. Surrogates sign up to carry someone’s child for financial reasons. There are no rich surrogates. This can be seen as a situation where poorer women are exploited by richer intended parents for their reproductive capacity. These surrogates need protection to make commercial surrogacy a more morally acceptable practice. There is no financial protection for surrogates in the legislation. For example, if surrogacy agencies go bankrupt, as they have in the past in California, there is no provision that the surrogate would still get paid. The statute could have addressed this with a provision requiring that agencies provide escrow accounts for surrogates in advance with accredited third parties to protect against this situation. Additionally, it would be laudable to have open communication between surrogates and intended parents. If the legislation required that the names of intended parents must not be withheld from the surrogates, it would give additional protection to the surrogates. Also, there are no restrictions in California on the financial resources of surrogates. To avoid coercive decision-making, California could limit the financial incentives from transactions. In keeping with this, women on public assistance should not be allowed to be surrogates. Additionally, unlike Nevada (which has a health restriction for surrogates), California puts no health restrictions on who can be a surrogate. This was a missed opportunity to ensure that women do not endanger their own health for the surrogate payment. Additionally, it would have been helpful if the statute stated that some sort of health insurance must be guaranteed for the surrogate by the intended parents before any embryonic implantation takes place. This would go far in ensuring that the surrogate’s health-care needs are being addressed.

25Finally, California could have required disclosures to international fertility tourists so they are aware of the uncertainty of the citizenship of their child borne from a surrogate. Some countries, like France, who ban surrogacy, will not issue benefits or a passport to a baby born through a surrogacy arrangement. A conversation about the uncertainties of international surrogacy tourism in California could have been advocated in the statute.


26In this chapter, I attempt to provide a snapshot of the legal landscape of surrogacy in the United States, focusing on the leading international surrogacy destination of California. Although California does have a statute about surrogacy that codifies its existing law, it does not have much depth. If legislators really wanted to protect all the parties in a surrogacy arrangement, the legislation would have included provisions addressing protections for surrogates and international fertility tourists. Without such provisions, there is a real concern that the surrogates’ reproductive capacities are being sold off to the highest bidder, without protection for the surrogates. Given the imbalance of power and financial capabilities between the parties, such protections are needed to even the playing field.



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Associate professor at the Barry University School of Law in Orlando, Florida, is an expert in the areas of health-care law, public health law, and bioethics. Her research focuses on the intersection of biosciences and the law, and she has published and presented extensively about international surrogacy, egg freezing, and assisted reproductive technologies. Professor Mohapatra received her JD degree from Northwestern University School of Law. Prior to attending law school, she received her master’s degree in Public Health from Yale University, and her bachelor’s degree in Natural Sciences (with a minor in Women’s Studies) from Johns Hopkins University.

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