Restraining the Surrogacy Regime

The most crucial aspect of parental rights and duties is the easy identification of the parents, which, typically, involves a baby coming into the world through natural birth from physical sex between a married man and woman. Those who have the child have parental rights. In addition, since tragedies are not unknown in human life, our laws have set up a process whereby parental rights come from adoption. Procreation as a norm and adoption as an exception—this is how states have traditionally acknowledged, as opposed to created, parental rights. 

Advanced reproductive technologies (ARTs) are revolutionizing parental rights, in part through the propagation of surrogacy. Such a revolution must be confined so as to protect the legitimate exercise of parental rights and to prevent women from being used as baby-factories.

At least three states ban compensated surrogacy altogether (Louisiana, Nebraska, and Michigan), while others keep surrogacy in a legal limbo. Other states distinguish between traditional and gestational surrogacy. Traditional surrogacy, where the egg-donor surrogate is impregnated by the would-be father’s sperm through artificial insemination, can trigger processes akin to adoption in most states. The surrogate mother must surrender parental rights to the “intended parents” after the baby is delivered and the non-biological “intended parent” must complete a stepparent adoption. Gestational surrogacy, where an embryo is created through in vitro fertilization from the “intendent parents” and implanted in the surrogate’s uterus, is unregulated in most states, but parenthood under these conditions is either decided by contract, or decided by the state when there is a conflict between the surrogate and the would-be parents.  

Where surrogacy remains unregulated, contracts or human agreement establishes parental rights. When the conditions that gave rise to the contract change, courts or other political institutions must determine who the parent is. Courts or regulators have replaced the natural categories of father and mother with “parent” and sought to expunge all attributes of marriage that do not equally apply to same-sex couples.  

The new idea of “parent” is a skin suit, however, masking a decisive change in perspective. Under the regime where procreation defines who gets parental rights, laws recognize, but do not create, the rebuttable presumption that the husband is the biological father of the child born to his wife, the biological mother. Under a surrogacy regime, the status of parent is bestowed by the state upon adults whose conduct and agreements receive judicial approval. The surrogacy regime separates conception from conjugal relations, disrupts the relationship between mothers and their children, and makes biological ties incidental to the establishment of parental rights. 

The surrogacy regime separates conception from conjugal relations, disrupts the relationship between mothers and their children, and makes biological ties incidental to the establishment of parental rights. 

The deepest question of policy is whether these two ideas of how parental authority is established—one recognizing procreation, one emphasizing a human agreement or legal creation of parental rights—can co-exist in the same legal system. Is procreation recognized and hence not state-created? Or is parenthood a contract- or state-created category, changeable with movements in politics? Before Obergefell, many states stigmatized and burdened surrogacy, if they did not outright ban it. After Obergefell, surrogacy became essential for same-sex couples who wanted children. And once the natural relation of mother-father-child was cast off as the binding legal norm, courts dealt with the thorny issue of redefining “parent” to accommodate this new method of making a family. Several states have gone so far as to establish an individual right to surrogate parenthood. As Jeff Shafer argues, Obergefell and its progeny establish a “right to other people’s children.”

The law already blesses the surrogacy regime’s vision of human relations as can be seen in custody conflicts when “intended parents” lose the will to parent or the contract does not work as planned. Consider a 2016 New York case. A same-sex male couple (man A and man B) conceived twins using the egg of man B’s sister and man A’s sperm. Then man A and man B separated, and man A left for Florida. The state supreme court ultimately ruled that man B and his sister are parents of the twins. What defines parenthood in this case? One parent is an adult unrelated to the child biologically but who agreed with a partner at one time to jointly raise the children conceived by that partner. Human assertion or “intent” establishes (at least) one side of the question of who has parental authority. On this principle, a state need not presumptively recognize a woman giving birth to a child as authorized to retain that child. 

State-approved surrogacy creates the conditions for renouncing or separating the connection between sex, procreation, and parenthood. It teaches that the connection is not in fact normative, but rather a creature of law, circumstance, and human assertion. Judges or politics make the family an entity of political creation and control. Eventually, if one follows the surrogacy logic, parents might need state licenses in order to establish or exercise parental authority, since parental prerogatives derive from political determination not natural relationships of siring and birthing. 

Surrogacy contracts create parental authority through means that point to a revolution in family life—that revolution will not come in a day or even in a short generation. It will come as artificial reproductive technology, genetic modifications, and other technologies leverage the cracks in the law to transform family life away from duties and rights adhering through blood-ties toward a brave new world where “intentions” or other state-created categories matter more. 

Broadly, law in this area should maintain the connection between sex, procreation, and marriage as a matter of principle. In order to confine the surrogacy regime and its troubling logic, states should, first, acknowledge at least the birth-mother’s indefeasible custody in law; second, establish that the biological father of a child born pursuant to a surrogate contract will have all the rights and duties imposed by law; third, establish that every child has a right to know his or her biological mother and father so that only two names can appear on a birth certificate; fourth, make all compensated surrogacy contracts unenforceable; and fifth, prohibit commercial surrogacy—the buying and selling of wombs and gametes—and make anyone who enters into a surrogacy agreement that is not sanctioned by law subject to criminal and civil penalties. 

Scott Yenor is Senior Director of State Coalitions at the Claremont Institute’s Center for the American Way of Life and a professor of political science at Boise State University.