Debating Paid Surrogacy

The New York Times has recently published a series of articles on assisted reproductive technology and on surrogacy in particular. “Room for Debate” has hosted a discussion on surrogacy, with five experts weighing in on the legal and ethical ramifactions of the practice. An article from September 17th further highlights the piecemeal regulatory approach we have in the US for dealing with surrogacy and surrogate contracts. The author, Tamar Lewin, notes that “Seventeen states have laws permitting surrogacy, but they vary greatly in both breadth and restrictions. In 21 states, there is neither a law nor a published case regarding surrogacy…” The wide disparity among state regulations leaves potential parents vulnerable to contract violations. Moreover, the vast differences among states means that states with more permissive legal structures, like California, become destinations for medical tourism. Regulation of surrogacy is a political hot potato, with a disparate group of organizations opposing the practice for an even more disparate set of reasons. But failure to create at least some legal framework to address current practices is incredibly risky. Waiting for a policy window to open in this issue area may require a serious legal challenge to state law, allowing the courts to shape the framework instead of medical and policy experts.