Why Is It So Challenging to Change Surrogacy Laws?

Third-party reproductive methods, especially the use of gestational surrogates, have made the legal nuances of family creation somewhat difficult to define. For some states, surrogacy is a very controversial legal topic. This is partly because of surrogacy’s legislative history and partly because some lawmakers and activists are concerned about surrogacy in regard to those women who undertake the role.

The Case of Baby M

In the late 1980s, there was an infamous New Jersey court case known as the Baby M case, which centered on a couple who hired a woman to be a traditional surrogate for them. With traditional surrogacy, the surrogate is both the biological and gestational mother of the child.

The original agreement was that the surrogate would be paid $10,000, be inseminated with the husband’s sperm, and then carry the baby to term — at which point she would relinquish her parental rights. However, once the baby was born, the surrogate had a change of heart and refused to renounce her parental rights, which sparked a long, challenging custody battle between her and the couple. Although the court ruled that the surrogacy contract was invalid, the couple was eventually granted custody after it was determined that it would be in the best interest of the child.

The case brought up a lot of ethical questions about surrogacy and body autonomy, and eventually triggered a wave of knee-jerk, anti-surrogacy legislation across the country. For some states, the stigmas that emerged from the Baby M debate continue to haunt present-day legislation.

Moving Forward

Although a few states continue to adhere to strict bans against surrogacy, surrogacy laws have improved overall throughout much of the U.S. Some states, such as California, have statutes in place that permit surrogacy in almost all forms, allowing couples and individuals to create the family they desire regardless of fertility, family structure, chosen third-party method, or sexual identity.

While changing draconian surrogacy laws won’t happen overnight, by becoming educated about the surrogacy process and spreading awareness anyone can become an advocate for improving surrogacy law.

Back to blog