Third party reproduction -- or surrogacy -- came under scrutiny recently in the New York Times, highlighting the lack of consistent regulation state to state and the litigious issues that can arise from what amounts to an unregulated business. Third party reproduction refers to any occasion when three (or more) people collaborate on the birth of an infant. According the Times’ article, the unsatisfactory surrogacy regulation “means that it is now essentially possible to order up a baby, creating an emerging commercial market for surrogate babies that raises vexing ethical questions.” Essentially unregulated are the criteria for adoptive or biological parents and the surrogate who may or may not be using her own egg. This leaves lots of room for complicated paternity and maternity challenges within an emotionally charged arena.
Furthermore, there is no authority to which families may appeal in surrogacy cases. The process itself is largely controlled by the fertility doctors, many of whom have a significant financial stake in the outcome. Some, but certainly not all, surrogacy agencies have screening requirements for surrogates and prospective parents. One such requirement in roughly ten states is that surrogacy be limited to situations where at least one parent is genetically linked to the baby.
Because the state laws differ, judges across the country have asked for guidance on how to untangle these complex issues. California is considered friendly to surrogacy because state courts have upheld surrogacy contracts in support of the people who hire surrogates. By contrast, in Michigan and many other states, surrogacy contracts are often deemed unenforceable.
Lawyers agree that fewer problems arise when one parent is genetically linked to the child. But since there are other cases with no genetic link, the American Bar Association has created a model act for state legislatures regarding surrogacy regulation. The proposed legislation states that for cases in which neither prospective parent shares a genetic link to the child, surrogacy contracts would require court pre-approval. The American College of Obstetricians and Gynecologists also has created guidelines for surrogacy including a recommendation that not for profit agencies work through the arrangements of the surrogacy.
Source: nationalpartnership.org, The Advisory Board Company, The New York Times
