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.