Slew of State Laws Scrutinize Surrogacy
When Crystal Kelly signed a contract to bear a baby for a couple in Connecticut, a routine ultrasound five months later showed that the fetus had a cleft palate, a brain cyst and heart defects. The couple subsequently asked Ms. Kelley to have an abortion, offering to pay her $10,000 to do so. However, Ms. Kelley fled to Michigan, where surrogacy contracts are unenforceable and had the child. She was listed on the birth certificate as the mother, and a family that had other special-needs children adopted the little girl.
Although surrogacy is becoming more commonplace in the United States, it remains a polarizing issue. Because there is no national consensus on how to handle it, states are free to do as they wish.
Seventeen states have laws permitting surrogacy, but vary greatly in range and restrictions. In many states, surrogacy is a taboo issue, drawing opposition from anti-abortion groups, opponents of same-sex marriage, the Roman Catholic Church, some feminists, and those who view surrogacy as an experiment with unforeseen consequences.
Many states are now considering certain limits and trying to find middle ground. “My sense of the big picture is that we’re moving toward laws like the one in Illinois, which accepts that the demand for surrogacy isn’t going away but recognizes the hazards and adds regulations and protections,” says Joanna L. Grossman, a family law professor at the Hofstra University Law School. The Illinois law requires medical and psychological screenings for all parties before a contract is signed and stipulates that surrogates be at least 21, have given birth at least once before and be represented by an independent lawyer, paid for by the intended parties, thus, “eliminate[ing] some of the concerns about designer babies.”
Lawmakers in New York, Washington D.C., and elsewhere are considering measures to allow surrogacy.
See Tamar Lewin, Surrogates and Couples Face a Maze of Laws, State by State, The New York Times, Sept. 17, 2014.
Special thanks to Jerome Borison for bringing this article to my attention.