As Surrogacy Becomes More Common, So Does Litigation

Advances in the field of reproductive medicine have allowed individuals and couples to have children when, not too long ago, it would have been considered impossible. This technology is amazing, and the hope it brings to people who were previously unable to have children of their own is a very good thing.

However, like any new technology, surrogacy brings with it new legal issues that nobody could have foreseen, especially since this particular technology involves bringing human beings into the world, who obviously have their own distinct legal rights. As one might imagine, the legal issues created by the widespread use of surrogacy are as complex as they are numerous. And considering that these legal issues have extremely high stakes, it’s important that clear legal rules develop to govern this activity.

An excellent recent article in the ABA Journal brings up some of these issues. A surrogacy arrangement typically looks something like this: a couple who are unable to have children for whatever reason (infertility, they are a same-sex couple, etc.) contacts a woman who agrees to serve as a surrogate mother for the couple’s child. She will carry the child to term, and upon birth, cede all parental rights in the child, who is then adopted by the couple. As far as what happens biologically, there are many different arrangements. Sometimes, the mother’s egg is fertilized by the father’s sperm, and then implanted in the surrogate (this is in cases where a woman produces viable eggs, but there are serious concerns about her ability to safely carry a pregnancy to term). Other times, one of the surrogate’s eggs are used (often with same-sex male couples).

In any case, the idea is that the surrogate will voluntarily give up her parental rights, and the parents will then adopt the child, becoming the child’s parents for all legal and practical purposes. And most of the time, this is how it works out.

There are cases, however, when something goes wrong. As noted in the article linked above, the surrogate will occasionally back out of the agreement at the last minute, and refuse to give up parental rights, leading to a major legal fight that can last for years. And in cases where the surrogate has given birth to her own biological child, it’s highly unlikely that a court will terminate her parental rights, which is an understandable position.

One of the big problems with surrogacy, at least in the U.S., is that family law is almost exclusively governed by individual states. This means that the laws regarding surrogacy can vary widely, based on what state you’re in (and that’s assuming your state even has laws dealing with the subject). Obviously, this can cause significant confusion. Unlike many other countries, the U.S. has no federal law regulating surrogacy, and dealing with issues such as disputed parental rights.

In an attempt to remedy this, many states have passed the Uniform Parentage Act, which is an attempt to harmonize the law governing surrogacy (among other things) among the states. However, not every state has adopted this law, so the problem remains.

In 2008, the American Bar Association adopted a model federal statute that would govern assisted reproductive technology. Of course, this is just a proposal, and has no legal force unless it’s passed by Congress and signed by the President. Considering that, these days, you can’t get a Democrat and a Republican to agree on the color of the sky, the chances of such a law receiving the broad bipartisan support it would need seems slim to none, for the time being.

In particular, a uniform surrogacy law needs to clearly lay out the conditions under which a surrogacy agreement is enforceable. Some reasonable provisions I can think of off the of my head include requiring that all parties be represented by independent counsel, and a mandatory “cooling-off” period for the prospective surrogate, giving her time to think it over, and back out of the agreement should she so choose.

In a way, however, the exact provisions of rules governing surrogacy are not as important as the simple existence of such rules. I’ve brought up this point in regards to other emerging technologies that the law doesn’t currently deal with. Basically, I think that it’s essential that all the parties involved in these issues are governed by clear rules, which reduces uncertainty, and the likelihood of disputes. I wouldn’t say that the quality of these rules is secondary, but I would say that its importance is roughly equal to the importance of the mere existence of rules.