Compensated Surrogacy

Abstract

Even jurisdictions that have declared surrogacy contracts unenforceable, like New Jersey, Indiana, or Nebraska, for example, can be sites for full voluntary performance of a surrogacy agreement. ... Whether or not it opts to enforce surrogacy contracts, any state that recognizes surrogacy and does not criminalize it can then regulate rules of access, for birthmothers as well as would-be parents, and, most important, it can regulate surrogacy agencies. ... No Necessary Connection Between Surrogacy and Marriage An easy answer, of course, is that Windsor and the ensuing litigation have added considerably to the number of married couples who may not be able to have children in other ways, and in that sense there is added pressure to legitimate this avenue to parenthood. ... With gestational surrogacy, they can obtain an egg from a person who would never consent to be paid as a birthmother (or if she did, she would demand far more than the going rate). ... The many states still criminalizing commercial sex, to which these same arguments apply, demonstrate that these arguments cannot carry the day. ... States may be legitimately reluctant to allow commerce and contract to govern conception, childbirth, and custody, areas otherwise insulated from monetary transactions by adoption and baby-selling laws.