The global push to ban surrogacy

A rising international movement aims to ban surrogacy, achieving successes in Europe as it turns its focus on the United States and elsewhere around the world. 

An unusual alliance between religious conservatives and feminists concerned about how surrogate mothers are treated is trying to expand current surrogacy bans and even impose criminal penalties on those who use it. 

Last year, Italy banned overseas surrogacy, with penalties of up to a $1 million fine and two years in prison. Earlier this year, Spain prevented the registration of surrogate children born abroad, while Greece introduced a new restriction that bars surrogates who are not legal residents of the country. A United Nations special report and the European Parliament have also criticized the practice.

Here in the United States, in a not-so-distant past, the Wall Street Journal opinion page, a reliable yardstick for where the American conservative movement is headed, ran a guest commentary titled “The Case for Banning Surrogate Motherhood.”

Some of these efforts aim to fight the exploitation of vulnerable women who might be underpaid, face unnecessary strict contractual restrictions during pregnancy, or take avoidable health risks. However, the restrictions often extend beyond what is needed, raising questions about their motivations.

As I noted in an analysis last year for Solicitors Journal with Italian lawyer Alessandro Gravante, the move in Italy to ban overseas surrogacy appeared driven by religious concerns and aimed at same-sex couples who had long traveled to the United States for surrogacy.

The restrictions hurt LGBTQ+ couples and those suffering from infertility by limiting their options to have a child, making it harder to complete paperwork recognizing their relationship to their children, and casting doubt on existing families.

In the United States, surrogacy laws are primarily handled by individual states, which can result in legal complexities. In about a dozen states, surrogacy is entirely legal, with Michigan and Massachusetts recently enacting laws to protect the legal rights of intended parents, according to research from Surrogate First.

In some states, surrogacy is either limited to residents or governed by vague laws that can lead to legal issues. In Louisiana, paid surrogacy is even classified as a criminal offense.

California is a key state for seeking surrogacy rights because it allows people to keep their surrogacy details confidential. It provides a birth certificate showing they are the parents, allowing them to return to their country without anyone knowing they used a surrogate, especially for opposite-sex families. However, same-sex parents still face difficulties in countries like Italy.



The reality is that a showdown would have to happen in the US Supreme Court, and it's improbable we would have proper standing. Standing usually requires a party to have the ability to sue and then bring the case to the Supreme Court. 



It’s unlikely that Congress could pass a law. Therefore, it would have to be a private party that was denied surrogacy, similar to a Roe v. Wade case.  



This would then have to occur in a conservative state. Still, it is unlikely to significantly impact the surrogacy movement internationally because California and other progressive states are unlikely to pass laws banning surrogacy.

The American public, however, seems to have made up its mind. Polls on the topic are infrequent, but they mostly show overwhelming support for surrogacy and a strong majority backing commercial surrogacy.

These new political efforts to restrict or ban surrogacy seem to be part of a larger attempt to roll back recent advances in family law that recognize diverse family structures and promote greater personal freedom in reproductive choices.

In the United States, proposals to restrict or ban abortion, overturn the Supreme Court decision recognizing same-sex marriage, end no-fault divorce, and strictly define gender have emerged. Last year, the Alabama Supreme Court even effectively outlawed In Vitro Fertilization, or IVF, until the state legislature quickly updated its laws.

These ideas are often presented as part of a pro-family political agenda, but by seeking to restrict personal autonomy in defense of a narrowly defined traditional family, they would actually make it harder for many people to start their own family. 

Surrogacy is nothing short of a modern miracle. It provides a meaningful pathway to parenthood for people who might never have been able to have children before, actively contributing to the continuity of family, and securing a loving and nurturing home for a new generation. We should not let politics get in the way of this.