Surrogates and Couples Face a Maze of Laws, State by State

New York Time, September 17, 2014 – by Tamar Lewin

When Crystal Kelley, a Connecticut woman who had signed a contract to bear a baby for a couple in her state, was five months pregnant, a routine ultrasound showed that the fetus had a cleft palate, a brain cyst and heart defects. The couple for whom she was carrying the baby asked her to have an abortion, offering to pay her $10,000 to do so.

But instead, Ms. Kelley, a single mother of two, fled to Michigan, where surrogacy contracts are unenforceable. So in June 2012, when she had the baby there, Ms. Kelley was listed on the birth certificate as the mother, although she had no genetic connection to the infant, made with the husband’s sperm and an egg from an anonymous donor. The little girl was adopted by a family that had other special-needs children.

While surrogacy is far more accepted in the United States than in most countries, and increasing rapidly (more than 2,000 babies will be born through it here this year), it remains, like abortion, a polarizing and charged issue. There is nothing resembling a national consensus on how to handle it and no federal law, leaving the states free to do as they wish.

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, according to Diane Hinson, a Washington, D.C., lawyer who specializes in assisted reproduction. In five states, surrogacy contracts are void and unenforceable, and in Washington, D.C., where new legislation has been proposed, surrogacy carries criminal penalties. Seven states have at least one court opinion upholding some form of surrogacy.

California has the most permissive law, allowing anyone to hire a woman to carry a baby and the birth certificate to carry the names of the intended parents. As a result, California has a booming surrogacy industry, attracting clients from around the world.

Seeking Middle Ground

In many states, surrogacy remains a political third rail, drawing opposition from anti-abortion groups, opponents of same-sex marriage, the Roman Catholic Church, some feminists, and those who see surrogacy as an experiment that could have unforeseen long-range effects.

The issue has produced some strange bedfellows: In several states, for example, Kathleen Sloan, an abortion rights advocate who is a board member of the National Organization for Women, has worked with Catholic and conservative groups to oppose surrogacy because she sees it as a form of exploitation. But most other feminists have backed off.

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Anthony Brown

Anthony Brown

Attorney and Advocate at Time For Families
Who am I? On the deepest level, I am blessed. I have an amazing partner, who I have known since 1989 and been married to since 2004. I am the donor dad of two beautiful daughters who have two moms who are equally amazing. My husband and I have expanded our family through surrogacy and have a seven-year old son. I have had three careers (acting, massage therapy and the law) and I am still discovering myself. I am the Board Chair of Men Having Babies. The one thing I know for sure is that life is about trusting your instincts. Family is an instinct.
Anthony Brown