Surrogacy in the U.S. and Beyond: A Path Toward Global Standards?

As medical advancements progress and technology evolves, society often grapples with the ethical and moral implications of these changes. Surrogacy and fertility treatments are no exception, as they challenge traditional beliefs and evoke diverse moral and religious responses. These hesitations, whether grounded in reason or not, can hinder advancement but might also offer protection.

Surrogacy is a process in which an individual capable of pregnancy carries and delivers a child for another person or couple through the use of in vitro fertilization (IVF).[1] There are two primary types of surrogacy: traditional, where the surrogate is the biological mother through the use of her egg, and gestational, where the surrogate carries an embryo created from another woman's egg.[2]

In the United States, a legal contract is required between the intended parents and their surrogate before any medical procedures begin.[3] However, there is no federal regulation governing surrogacy, leaving its legality and enforcement to individual states.[4] The result is a patchwork of laws: surrogacy is prohibited in Indiana and until recently, Michigan.[5] In 2024, Michigan repealed its criminal ban on surrogacy, and by 2025, it is expected to enforce gestational surrogacy agreements in its courts.[6] Meanwhile, states such as Louisiana criminalize commercial surrogacy in most cases, and others like Arizona and Nebraska render surrogacy contracts void and unenforceable.[7]

In 2019, when New York debated legalizing paid surrogacy, intense discussions among feminists and women’s rights scholars brought ethical concerns to the forefront.[8] Critics argued that paid surrogacy commodifies women’s bodies and exploits economically disadvantaged women.[9] These debates highlighted the tension between reproductive autonomy and the potential for systemic exploitation, a conflict echoed in global discussions.[10]

This concern became especially prominent in India, where fertility tourism once skyrocketed and brought in hundreds of millions annually.[11] Surrogates at certain hospitals were paid in installments, earning approximately $6,230 for a successful surrogacy involving a single baby.[12] In the case of a miscarriage, the surrogate retains the amount already paid and is given an additional $135.[13] Who makes up the majority of the surrogates in India? The answer is unsurprisingly poorer women from rural areas, although educated women have also joined the pool of surrogates.[14] However, fears of exploitation and coercion led India to ban commercial surrogacy, allowing only altruistic arrangements, in which the surrogate receives no monetary compensation.[15] While this addressed ethical concerns, it simultaneously removed a legitimate income source for many women.[16]

With the United States being one of the very few countries that allow commercial surrogacy, and seemingly the only country that has defined laws that protect both surrogates and intended parents legally, it is in a unique position to lead.[17] By establishing comprehensive federal regulations that balance all parties’ rights, the U.S. has the potential to serve as a global model, inspiring the international community to create uniform legal frameworks that ensure ethical and equitable surrogacy practices worldwide.

Monika Lucic is a staff member of Fordham International Law Journal Volume XLVIII. 

[1] Yale Medicine, Surrogacy, https://www.yalemedicine.org/conditions/gestational-surrogacy (last visited Jan. 8, 2025).

[2] ConceiveAbilities, The Different Types of Surrogacy (Aug. 10, 2018), https://www.conceiveabilities.com/about/blog/the-different-types-of-surrogacy.

[3] Yale Medicine, Surrogacy, supra note 1.

[4] National Center for Lesbian Rights, U.S. Surrogacy Laws by State, https://www.nclrights.org/get-help/resource/us-surrogacy-laws/ (last visited Jan. 8, 2025); Rebecca Reingold, A Lack of Consensus Around Surrogacy Regulation at the National Level, (May 16, 2018), https://oneill.law.georgetown.edu/a-lack-of-consensus-around-surrogacy-regulation-at-the-national-level/.

[5] Surrogacy360, Current Law, https://surrogacy360.org/considering-surrogacy/current-law/ (last visited Jan. 8, 2025); Surrogacy360, Regulation Details in the U.S. by State (Aug. 6, 2024), https://surrogacy360.org/wp-content/uploads/2024/08/Regulation-Details-in-the-US-by-State_8.6.24.pdf.; Press Release, Office of Governor Gretchen Whitmer, Whitmer Signs Bills Decriminalizing Surrogacy and Protecting IVF (Apr. 1, 2024), https://www.michigan.gov/whitmer/news/press-releases/2024/04/01/whitmer-signs-bills-decriminalizing-surrogacy-and-protecting-ivf.

[6] Id.

[7] Creative Family Connections, U.S. Surrogacy Law Map, https://www.creativefamilyconnections.com/us-surrogacy-law-map/ (last visited Jan. 8, 2025).

[8] Vivian Wang, Surrogate Pregnancy Battle Pits Progressives Against Feminists, N.Y. Times, June 12, 2019.

[9] Id.

[10] Id.

[11] Id.

[12] Neha Thirani Bagri/Anand, India’s Ban on Commercial Surrogacy Will Have Serious Consequences, Time (Dec. 2, 2022), https://time.com/6075971/commercial-surrogacy-ban-india/.

[13] Id.

[14] Id.

[15] Francesca Nardi, Two Sides to Every Coin: India’s New Ban on Commercial Surrogacy, O’Neill Institute (Aug. 15, 2019), https://oneill.law.georgetown.edu/two-sides-to-every-coin-indias-new-ban-on-commercial-surrogacy/#:~:text=These%20restrictions%20may%20help%20to%20protect%20economically,or%20stability%20for%20themselves%20and%20their%20families; Commercial Surrogacy vs. Altruistic Surrogacy, Worldwide Surrogacy Specialists (Jan. 11, 2021), https://www.worldwidesurrogacy.org/blog/commercial-surrogacy-vs-altruistic-surrogacy.

[16] Id.

[17] Surrogate.com, Intended Parents: What Are the International Surrogacy Laws by Country?, https://surrogate.com/intended-parents/surrogacy-laws-and-legal-information/what-are-the-international-surrogacy-laws-by-country/ (last visited Jan. 8, 2025).

This is a student blog post and in no way represents the views of the Fordham International Law Journal.