Surrogacy: Overview

Introduction

There are two different types of surrogate parenting: classical or traditional surrogacy through artificial insemination, and gestational surrogacy through in vitro fertilization. Each of those fall into the categories of either altruistic or commercial (paid) surrogacy. The most common type of surrogate parenthood in the United States, where surrogates may be relatives, friends, or previous strangers contacted through an agency, is the process by which an individual or couple arranges for the birth of a child using another woman’s uterus. The surrogate agrees, with or without payment, to bear a child for the couple, usually when a female partner cannot conceive or carry a child to term but also when both partners are male. In most cases, a male partner's sperm is used to fertilize an egg belonging to either his female partner or the surrogate, making him the biological father of the child. Regardless of the method of conception, however, the surrogate is expected to give up, or relinquish, all parental rights at birth. The intended parents can then file for adoption of the newborn.

According to the American Society for Reproductive Medicine's best practices, a surrogate should be between the ages of twenty-one to forty-four years old, have birthed multiple healthy children of her own, and passed both physical and psychological examinations. Research has shown the majority, at least in the US, are married and tend to think of themselves as empathetic to the needs of others.

Advocates for commercial surrogacy insist that the process is morally acceptable and beneficial to society because it offers parenthood to individuals who have exhausted many other options. Critics claim that surrogacy is emotionally unhealthy for the individuals who serve as surrogates and that it employs immoral methods for achieving pregnancy and parenthood. They also argue that surrogacy amounts to the buying and selling children, and should be prohibited by law. Commercial surrogacy is legal in several countries; high international demand and ready availability of poor women to act as surrogates reached proportions that some say merit being called “wombs for rent”, “outsourced pregnancies,” “baby farms,” or “baby factories.”

Surrogacy has been under particular scrutiny in the United States for decades, primarily due to media attention surrounding high-profile cases in which surrogates have refused to relinquish their parental rights. Other notable cases have involved the mother of an intended parent serving as their surrogate, a mix-up with embryo transfers, and the intentional use of multiple surrogates to produce twins. By the spring of 2024, no US state criminalized commercial surrogacy or surrogacy contracts.

Understanding the Discussion

Altruistic surrogacy: An arrangement in which the surrogate receives no payment for her pregnancy or for the child but, by prior arrangement, her expenses for the pregnancy and birth are paid for by the intended parents.

Biological parents: The parents whose egg and sperm were used in the creation of a child.

Classical surrogacy: Also called “traditional surrogacy” or the “straight method of surrogacy,” surrogacy by artificial insemination using the intended father’s sperm. In this situation, the surrogate provides the egg and is therefore the biological mother of the child, whom she does not intend to keep but instead will relinquish, often to the biological father and his partner.

Commercial surrogacy: Also called “third-party surrogacy,” the arrangement of surrogacy between previously unknown individuals through an agency. The surrogate receives as much as tens of thousands of dollars in payment to carry a child to maturity in her uterus.

Contractual parenting: The most common legal term for surrogacy.

Gestational surrogacy: Surrogacy by embryo transfer and in vitro fertilization. In this situation, the egg, which may come from the intended mother or an egg donor, is fertilized in a laboratory with the sperm of the intended father or donor and then injected into the uterus of the surrogate, or gestational carrier. The gestational carrier has no genetic connection to the child and generally relinquishes the newborn to the biological mother or father or to a nonbiological parent if the child was conceived through egg, sperm, or embryo donation.

Intended parents: The parents who will raise the child. In some cases, one or both of the intended parents are also the biological parents.

Stepparent adoption: Adoption of a child by a nonbiological parent.

History

Historically, stories of surrogacy have been recorded in ancient texts, passed down through family folklore, and recorded in local history, but the practice of commercial surrogacy did not become legal in the United States until the 1970s.

In 1976, Noel P. Keane became the first lawyer in the United States to help arrange third-party surrogate births. In 1980 Elizabeth Cane became the first woman in the US to legally serve as a surrogate. For many years, Cane spoke as an advocate for surrogacy until the late 1980s, when she publicly announced her regret over serving as a surrogate and giving up the child she had delivered.

During the 1970s, advancements in reproductive technology changed the options available for couples struggling with infertility. With the perfection of the process of in vitro fertilization, couples trying to conceive were able to consider a laboratory-based fertilization of their own genetic material. In cases where the biological mother was still unable to carry her own baby to term, surrogates could offer this service.

In 1986 the topic of surrogacy drew national attention with the litigation between surrogate Mary Beth Whitehead and intended parents William and Elizabeth Stern. The case, commonly referred to as Baby M, centered on Whitehead’s refusal to relinquish parental rights over the child she had carried for the Sterns. Ultimately, the New Jersey Supreme Court issued a landmark ruling in favor of the intended parents on the grounds that the contract between Whitehead and Stern was legally binding. Despite appeals, the court subsequently ruled that it was in the baby’s best interest for custody to be granted to the intended parents.

The debate surrounding the Baby M case brought the moral and emotional issues of surrogacy to the forefront of public attention. But anthropologists have shown that surrogates usually use a variety of distancing techniques throughout the surrogate pregnancy to ensure that they do not become emotionally attached to the baby. Instead, the surrogate will spend additional time giving the intended parents opportunity to create a bond with the infant, even before birth.

Advocates for surrogacy fought to defend it as a viable option for couples struggling with infertility. Meanwhile, critics raised concerns about the emotional well-being of surrogates, attachment between mother and child, and the morality of such methods as in vitro fertilization. Lobbyists against surrogacy fought to develop laws prohibiting the practice. With costs for surrogacy often topping US$100,000 in legal fees, medical fees, and financial provisions for the surrogates, critics argue that women and professionals should not profit from the business of childbearing.

In 1989 the American Bar Association (ABA) developed two model laws on surrogacy for state consideration. The first demonstrated how to legalize surrogacy and uphold it in the courts. This model was based on contractual parenting agreements between couples and surrogates and dealt with cases of surrogacy by artificial insemination of sperm from the intended father. This model also dictated that the intended mother medically prove her infertility. According to this model, the surrogate has 180 days after the baby’s birth to reconsider and keep the child she delivered. The second model demonstrated how to prohibit surrogacy by barring contractual parenting arrangements, which include payment to the surrogate and her subsequent relinquishing of parental rights.

In many states, laws governing adoption, artificial insemination, in vitro fertilization, and sperm donation conflicted with common practices of surrogacy. In these situations, states had difficulty considering surrogacy legislation and enforcing surrogacy contracts without consideration of other pre-existing laws.

By 1995, nineteen states had adopted laws regarding surrogacy, most of which prohibited or discouraged it. As of 2014, surrogacy contracts were unenforceable in five states and the District of Columbia. Seventeen other states allowed restricted surrogacy contracts, seven had affirmative court rulings, and twenty-one lacked any legislation or court decision explicitly dealing with the issue. Some states specifically banned legal or medical professionals from profiting from arranging contractual parenting agreements. As surrogacy cases arose, courts continued to lean on various statutes relating to birth records, adoption, reproductive options, and pre-existing contract law, rather than surrogacy itself. Custody laws differed from state to state, for instance, with most granting custody to the intended parents.

Meanwhile, the births of children with disabilities or birth defects to surrogates led to their abandonment by intended parents, thus raising further legal and ethical concerns over the practice.

Many countries banned the practice of surrogacy, including most member-states of the European Union. Others, such as India, Thailand, and Ukraine, advertised the service in the context of “reproductive tourism” to attract intended parents to find surrogates in their country. Similarly, the United States became a surrogacy destination for intended parents from parts of Europe, including France and Sweden, as well as China; Chinese parents have been eager to use American surrogates, in large part because surrogacy is outlawed in China and it allows them to circumvent their country’s population growth restrictions. Another reason prospective parents from other countries prefer the United States is that their child will automatically be an American citizen and will therefore make the parents eligible to apply for green cards upon the child reaching the age of twenty-one—a fact that has fueled contention in the US immigration debate.

Surrogacy Today

One of the greatest sources of debate surrounding surrogacy in the twenty-first century is its growing use among gay couples. Louisiana, for example, explicitly requires that the intended parents be married heterosexuals and both related to the child; other states and countries have similar stipulations. In most cases, gay couples become parents through traditional surrogacy, with sperm donated by one of the intended fathers. The nonbiological parent usually has no legal custodial relationship to the child and—in the case of many gay couples before the US Supreme Court ruling in Obergefell v. Hodges (2015)—could not file for a stepparent adoption because his relationship to the biological parent was not legally recognized. In 2023 Italy extended its ban on surrogacy to criminalize arrangements its citizens pursue abroad, a move widely seen as harming gay Italians most. Both in the US and abroad, advocates for gay rights and surrogacy have continued lobbying for legislation that would grant greater rights for nonbiological parents.

Surrogates continue to have their role debated and often criticized by many feminists. Some claim that surrogates are engaging in commodifying childbearing, an act that is likened to prostitution. Moreover, the potential exploitation of poor women, particularly in developing countries, has become a concern. Other feminists, however, assert that women should have control over their bodies, including the option to act as surrogates.

Contentions over surrogacy remain among different faiths as well. The Latter-day Saints and some Protestant denominations discourage the practice but leave it to couples' prayerful discretion. Staunch opponents include the Russian Orthodox Church, the Roman Catholic Church, and Orthodox Judaism. The Catholic Church is among the most vocal, condemning all assisted reproductive technologies, including in vitro fertilization, as unnatural and considering surrogacy a violation of children's rights. In 2024 Pope Francis urged a worldwide ban on surrogacy, which he listed among other perceived affronts to human dignity.

By then, a number of jurisdictions had already banned commercial surrogacy but allowed altruistic surrogacies under specific conditions. For example, India, Georgia, Thailand, Cambodia, and Russia had all restricted surrogacy, with several explicitly preventing foreigners from becoming intended parents in order to curb reproductive tourism.

Nonetheless, worldwide, the commercial surrogacy sector reached an estimated $14 billion by 2022 and some countries liberalized their laws on surrogacy. Ireland and New Zealand, for example, extended legal recognition to families formed by surrogacy, while Ukraine remained a surrogacy hub even during its war with Russia.

These essays and any opinions, information or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

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