Surrogacy: American Style

Abstract

This overview of surrogacy regulation in the United States challenges its reputation as a hotbed of unregulated commercial surrogacy. Although to outside observers, the United States appears to assume a laissez-faire attitude towards surrogacy, in actuality laws regulating surrogacy in this country take many different forms. On one end of the spectrum are jurisdictions that outlaw and criminalize surrogacy; on the other are jurisdictions that permit and facilitate commercial surrogacy agreements. The focus herein is on the primary subjects of surrogacy regulation — access and parentage. In addition, the author canvasses and critiques the main strains of critical commentary on American surrogacy, concluding that the broad shift to gestational surrogacy and empirical evidence about surrogacy arrangements have brought us to a place where the commodification- and exploitation-based arguments against surrogacy have much less traction. The resulting trend in the law is toward more permissiveness within a regulatory framework that aims to define and protect the interests of all of the parties to the arrangement. The chapter concludes with an argument against limiting access to surrogacy to heterosexual married couples.

Keywords: surrogacy, gestational surrogacy, traditional surrogacy, legislation, parentage, access to assisted reproduction, taxation, insurance, consumer credit, Baby M., Johnson v. Calvert, judicial pre-approval, feminism, exploitation, commodification