Intended Parents Face Divergent Regulations Across America

Gestational surrogacy is a wonderful opportunity for parents who are unable to have children of their own. It involves the generously donated services of a surrogate mother, who undertakes the physical risks and personal inconvenience of bearing a child to term. This child is grown from an embryo created with donated genetic material, often from the intended parents themselves. The surrogate is not genetically related to the child she bears – a factor which is directly implicit in the practice of gestational surrogacy.

This process is undertaken via a contracted arrangement, on behalf of that child’s intended parents. For her involvement, the surrogate mother receives what amounts to a modest annual income – which the IRS has recently declared to be definitively taxable. This, along with her medical care during the pregnancy and any agency fees, is paid for by the intended parents.

If this sounds as though it ought to be a fairly straightforward series of events, however, think again.

Inconsistent Legality of Gestational Surrogacy

A new article, recently published in The New York Times, shines a light on certain shadows. These shadows reflect the uncertainty of widely divergent state regulations across the USA.

Two of the most frequently asked questions by those interested in surrogacy are “is it legal?” and “what if the surrogate decides to keep the baby?” Neither question – not even the fundamental legality of gestational surrogacy itself – offers a simple answer which applies to all fifty states.

This article within The New York Times sheds some light into the thorny wrangle of the American legal system. Gestational surrogacy has helped countless thousands of intended parents to realize their dream of starting a family, but while it thrives as an industry, it isn’t even consistently legal across the country. While most subjects under individual state jurisdiction see a certain measure of inconsistent regulation from one state to the next, there is also the expectation of a certain “bedrock” of equivalent regard. A given practice, with very few exceptions, is generally at least legal – or not – in virtually every state.

With gestational surrogacy, we see something entirely different, despite the process having been in existence for years. This also exists in spite of gestational surrogacy being much more culturally acceptable within the US than it is in many other countries.

As an example of this disparity, one does not even need to look at individual state regulations in a list. One need only examine the categorical way in which gestational surrogacy agreements are regarded by state law. There are states in which gestational surrogacy is a legal, regulated practice, with care afforded to the child’s well-being – as well as to the needs and concerns of both the intended parents and their surrogate. One such state is Illinois, which recently passed a generous and supportive act in support of gestational surrogacy. Joanna Grossman, a graduate of Amherst College and Stanford University, works as a family law professor at the Hofstra University law school. She describes the Illinois law as being accepting of the fact that “the demand for surrogacy isn’t going away,” while “[it] recognizes the hazards, and adds regulations and protections.”

Many states, including Missouri and Massachusetts, have no specific laws regarding the practice of gestational surrogacy. While this does not equate to an outright ban – the Massachusetts courts are “generally favorable” to a contract as it is written, while Missouri equates surrogacy with adoption – the situation in this instance is far from being ideal, as there is no specific legal protection for the interests of the child or the intended parents.
There are also states where surrogacy agreements of any kind are legally void and unenforceable. Then there are those, such as with the current situation in New York – presently under review by a special task force from the governor’s office – where those who attempt to engage in the practice of commercialized surrogacy are heavily fined. Other states take a harsher angle still: Michigan imposes prison terms of up to five years (as well as a fine of up to $50,000) for engaging in any kind of contracted surrogacy agreement, whether traditional or gestational.
In Arizona, the child produced as the result of a surrogacy agreement is legally the child of the surrogate mother – and, if she is married, her husband is its legal father. While the Arizona Supreme Court established in 1994 that the intended mother could file a rebuttal, the default state of affairs has yet to experience significant challenge.