A New Legal Effort Would Expand the Practice of Surrogacy in the United States

Earlier this year, an influential legal group proposed an updated “Uniform Parentage Act” to provide states with model legislation for expanding legal rights related to the practice of surrogacy. The Uniform Law Commission (ULC) (also known as the National Conference of Commissioners on Uniform State Laws) describes itself as “provid[ing] states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” Despite the ULC’s self-identification as nonpartisan, the new Uniform Parentage Act (UPA) adopts positions about issues on which a large number of citizens and state legislators sharply disagree, including the legality of surrogate motherhood. Thus far, the model legislation has been enacted in one state and introduced in two more.

The Function of Parentage Laws

Most of the time, determining a child’s legal parents is simple. The mother and father are married and sexually faithful. The child is conceived in the mother by the union of the father’s sperm and the mother’s egg. The mother then gives birth to the child. Under every state’s parentage laws, she is the mother both by virtue of giving birth, and because she is the biological mother, genetically linked to this new human being. Her husband is the legal father by virtue of his genetic link with the child. Even had the wife been unfaithful to her husband, and become pregnant by another man during her marriage, parentage law would assign the role of legal father to the husband by virtue of the “paternity presumption.” In almost all states, only the husband and the wife have legal standing to challenge this conclusion. The “other man” cannot. The state does this in order to contribute to the stability of marriage; only the husband and wife get to decide if they wish to introduce the question of a child’s parentage into their marriage.

If a couple is not married but conceives a child together, it remains the case that the woman is the legal “mother” by virtue of her biological relationship to the child and by giving birth. The man is the legal “father” by virtue of his biological relationship. States (prodded by the federal government, which desires that the child is supported by the father, not the state) have various means of assigning legal fatherhood to an unmarried man, including but not limited to: obtaining his signature on the child’s birth certificate; creating paternity presumptions on the basis, for example, of a man’s support for the child, or his living with the child and holding himself out as the father; allowing fathers to file with a “putative father’s registry;” and genetic testing.

Parentage and Assisted Reproductive Technology

Given all of the above, it is easy to understand how legal parentage becomes complicated when a child is conceived via ARTs. The individual or couple who intend to raise the child (the “intended parents”) may have none of the usual indicia of parenthood (i.e. a genetic connection or having given birth). For example, the child could be the result of a donor egg, plus donor sperm, plus a surrogate’s womb. Or the usual indicators of motherhood could be divided between the surrogate “birth mother” and a “genetic mother” whose egg was used. A surrogate who provided both the egg and the womb could be married—in which case the law would usually presume that her husband was the father, even though the intended father is another man.

At the dawn of ARTs, “artificial insemination by donor (AID)” was the norm; state laws presumed that this procedure would be used by married women receiving donor sperm. Therefore, the law’s greatest concern was to allow husbands to be the legal fathers if there was prior consent to the artificial insemination with donor sperm. Not long after, when it became apparent that more single women were using artificial insemination, states generally changed their laws to allow the child to have no legal father whatsoever, so long as the woman had received her donor sperm from a licensed physician.

When surrogacy hit the national spotlight with the famous Baby M case, many states moved to forbid it. Today, state laws are quite varied but are generally hospitable to surrogacy, at least to “gestational surrogacy,” wherein the birth mother has no genetic connection to the child. “Traditional surrogacy,” where the birth mother is also the genetic mother, is less well-received because it involves a genetic mother surrendering her biological child, a process historically highly regulated via adoption laws.

Some states have relevant statutes on the books, while some do not, relying instead on judicial decisions to determine the fate of any surrogacy contract. A state might impose a criminal ban on paid surrogacy contracts but allow unpaid surrogacy. A state might ban “traditional surrogacy,” but allow “gestational surrogacy,” either paid or unpaid. Other states impose adoption-like requirements on surrogacy (e.g. allowing the birth mother to change her mind after birth), while others treat the agreement more like any other contract and permit pre-birth parentage orders. And some states, such as Texas, limit surrogacy to married couples, but most do not.

Matters become even more complicated when male same-sex couples seek surrogacy services. Statutes were drafted in terms of “mothers” and “fathers.” The “paternity presumption” applies to the husbands of wives. Furthermore, states are not universally willing to grant same-sex couples “rights” to parent via ARTs. There is no Supreme Court decision establishing an individual’s or a couple’s “right” to have a child. One case has forbidden compulsory sterilization of prisoners who commit certain kinds of felonies, but was decided on complicated Equal Protection grounds, and presumed that procreation would take place within a marriage between opposite-sex partners. It did not provide anything like a right to have a child by artificial means.

Furthermore, same-sex couples won a right to state marriage recognition by insisting that marriage is legally unrelated to any state interests in childbearing or linking children with their biological parents. But a few years later, several female couples won the right at the US Supreme Court to extend the “paternity presumption” to the female spouse of the birth mother, on the grounds that parenting is one of the “benefits” attached to state marriage recognition. This is not the same as a “right to parent” by means of ARTs, but it does indicate that when a state grants legal parentage status to opposite-sex couples who parent by means of ARTs, it will have to do the same for same-sex couples.

What the New UPA Does

The changes introduced into the UPA removes the previous language that assumed couples would consist of one man and woman and recognizes intended parents without regard to sex, sexual orientation, or marital status. This not only facilitates surrogacy by same-sex couples but also expands the general practice of surrogacy in this country.

Second, the law loosens state supervision over surrogacy contracts. Many states are still inclined to treat surrogacy like adoption, e.g. by requiring intended parents to appear in court before the child is born, by requiring a home study, and by allowing the birth-mother a chance to change her mind after the child is born. Under the new law, however, courts are removed from parentage determination. The intending couple is simply treated as the legal parents as long as they follow the procedures outlined in the statute. There is an exception for traditional surrogacy, however; this is treated more like an adoption proceeding. Advance judicial approval of such agreements is required, and the birth mother may withdraw her consent to relinquish her parentage rights until 72 hours after the child’s birth.

The new UPA also considers the right of human beings conceived via assisted reproduction to access medical and identifying information about their biological parents. This does not mandate the release of the identity of the biological parents but does require clinics to ask donors if they would like their identities disclosed on request of a child 18 years or older. If a child wishes to know his or her biological parents, the fertility clinic shall make a “good-faith” effort to notify the donor, who may later elect to withdraw a declaration that he or she did not wish to be identified. In the case of donors who do not wish to be identified in any case, the clinic “shall make a good-faith effort” to provide the child access to “nonidentifying medical history” about the donor.

In addition to facilitating same-sex parenting, the new UPA’s expansion of surrogacy is controversial due to increasing concerns over surrogacy and ART in general. The international debate over surrogacy—including its physical and psychological effects upon surrogate mothers and children—is far from over, especially given new films and testimonials recounting the experiences of the women and children involved.