Post-Baby M. era – surrogacy still beyond reach for many

In 1988, the New Jersey Supreme Court handed down one of the first decisions in the country concerning surrogacy contracts. The In re Baby M. (537 A.2d 1227, 109 N.J. 396) case held the surrogacy contract between Mary Beth Whitehead and William Stern was illegal and unenforceable as against public policy. Whitehead initially entered into a contract to conceive and bear a child (by artificial insemination) with Stern, and then relinquish her maternal rights in order for the child to be adopted by Stern’s wife and raised by the Sterns family. The Court compared the surrogacy contract to the sale of a child, which is prohibited by New Jersey laws regulating adoption. On remand, the lower court awarded Sterns custody and Whitehead visitation rights. In 2009, Superior Court of New Jersey expanded the Baby M. precedent beyond a genetically related surrogate mother (where surrogate provides the egg) and declared gestational surrogacy (where the egg is provided by a donor) contracts to be a violation of public policy (A.G.R. v. D.R.H & S.H).

Some American states ban surrogacy outright, while others rely on case law. Only a few set out clearly who is the parent of a child born of a surrogate mother. Similar to New Jersey, New York laws on surrogacy contracts are rigid – in1992, New York’s legislature declared surrogate parenting contracts void and unenforceable as contrary to public policy and prescribed civil and criminal penalties for entering into surrogacy contract involving any fees. N.Y. Domestic Relations Law §122, 123. Arizona and DC expressly ban all surrogacy contracts by legislation. In Michigan, it is a crime punishable by fines or imprisonment to enter into a surrogacy contract involving compensation other than the mother’s medical expenses. Indiana, Louisiana, Kentucky and Nebraska adopt the approach that surrogate childbearing contracts are legally unenforceable under any circumstances.

However, a few surrogacy-friendly states still exist. It is most common for surrogates to reside in Florida and California due to the surrogacy-accommodating laws in these states. California is especially popular due to its enforceable surrogacy agreements and abundance of law firms specializing in contracts between intended parents and surrogates. At this point, the laws surrounding surrogacy are well defined in Pennsylvania, and surrogacy is beginning to become common in the state of Delaware.

For a more complete discussion on different States’ surrogacy laws, click here.

Still, surrogacy is likely to remain an option only for the rich: estimates for traditional surrogacy (where surrogate provides the egg) range between $40,000 and $65,000 and estimates for gestational surrogacy (the egg is provided by a donor), cost between $75,000 and $100,000.