New York Times Examines Regulation, Ethics Of Third-Party Reproduction

Main Category: Fertility
Also Included In: Litigation / Medical Malpractice;  Pregnancy / Obstetrics
Article Date: 15 Dec 2009 - 1:00 PDT

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States' varying regulatory approaches to the field of third-party reproduction -- in which more than two people collaborate to produce an infant -- can cause thorny legal issues if disputes arise between the parties involved in a surrogate birth, the New York Times reports. According to the Times, the "lax atmosphere" of 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." Many matters related to surrogacy -- such as who can obtain children through surrogacy and who can serve as a surrogate -- are essentially unregulated, complicating paternity and maternity challenges after the baby is born, the Times reports.

There is no set authority deciding surrogacy regulations, and the process is largely controlled through fertility doctors, who have a financial stake in the procedure. Some agencies and clinics have strict requirements for surrogates and prospective parents, and roughly 10 states have passed laws limiting surrogacy, such as requirements for at least one parent to have a genetic link to the child, the Times reports. Because state laws differ, judges across the country have asked for guidance on how to untangle the complex legal and moral issues at play in surrogacy lawsuits. For example, California is considered friendly to surrogacy because state courts have upheld surrogacy contracts, meaning that people who hire surrogates often prevail in legal challenges brought by the surrogate after the birth. By contrast, in Michigan, surrogacy contracts are often deemed unenforceable, giving surrogates an advantage in guardianship disputes, the Times reports. According to the Center for American Progress, a few other states have laws similar to Michigan's.

Lawyers who have handled surrogacy cases say that fewer problems arise when a prospective parent is genetically linked to the child, giving the person an edge in legal disputes. To clarify the disparate state laws, the American Bar Association has created a model act for state legislatures concerning surrogacy regulation. The proposal states that for cases in which neither prospective parent shares a genetic link to the infant, surrogacy arrangements require court pre-approval through a process that would include a home visit. The American College of Obstetricians and Gynecologists also has adopted guidelines for surrogacy arrangements, including a recommendation that the process be handled by not-for-profit agencies (Saul, New York Times, 12/13).

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