Surrogacy is a complicated subject, to say the least. It involves many of the issues central to reproductive justice—bodily autonomy, a woman’s right to abortion, definitions of parenthood, and custody of children. It’s also an option increasingly relied upon by gay couples—usually gay men—to create families. It invariably brings up concerns about racial and economic justice when the majority of surrogates are low-income and many are women of color. It’s an issue on which few reproductive rights and justice groups are working on but one that deserves our close attention.

A change to this article was made on February 24, 2010 at 12:05 pm EST to include the name of a colleague organization that collaborated in support of a bill cited in this article. A second change was made to this article at 2:52 p.m. Friday, February 26th, 2010 to correct an error in the description of state laws governing surrogacy.

“Surrogacy” is a term used broadly to describe situations in which a woman is enlisted to carry a child for someone else, with the intent of giving custody over to the intended parent(s) at the end of the pregnancy.

Surrogacy is a complicated subject, to say the least. It involves many of the issues central to reproductive justice—bodily autonomy, a woman’s right to abortion, definitions of parenthood, and custody of children. It’s also an option increasingly relied upon by gay couples—usually gay men—to create families. It invariably brings up concerns about racial and economic justice when the majority of surrogates are low-income and many are women of color. It’s an issue on which few reproductive rights and justice groups are currently working but one that deserves our close attention.

The Current State of Surrogacy: Legal inconsistencies

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A recent and closely-watched ruling on surrogacy by New Jersey Superior Court Judge Francis Schultz contributed to the hazy patchwork of court cases and legal precedence that guides how surrogacy is now dealt with in the United States.

The U.S. is one of the few countries worldwide to have neither federal laws nor federal legal precedent restricting surrogacy, making the ease of surrogacy arrangements relatively attractive for couples who can not bear children. But the landscape is mixed. Some states’ laws and legal precedence completely contradict those of other states. What has resulted is an entirely unregulated surrogacy industry, with the majority of activity occurring in the few extremely permissive states.

A total of 17 states plus the District of Columbia (DC) have laws regulating surrogacy in one way or another. Ten states have laws allowing surrogacy under some circumstances, including Arkansas, Florida, Illinois, Nevada, New Hampshire, North Dakota, Texas, Utah, Virginia and Washington. Six of those states limit compensation for surrogacy arrangements; four require court approval. Three states allow the surrogate time to change her mind or challenge the contract and six others require pre-screening for surrogates and intended parents.

Seven states and DC have laws that prohibit, penalize, or void surrogacy contracts. The legislative regulations vary widely, but states that have no laws on the books can still regulate surrogacy via case law and legal precedent. California is one of the most permissive surrogacy states, even though there is no legislation with regard to the practice. New Jersey, on the other hand, is very unfriendly to surrogacy, also determined by legal precedent.

All the legal precedent that exists on the issue of surrogacy has come from a handful of cases where a dispute has arisen during a surrogacy agreement—often over the issue of custody of the resulting children. The majority of these cases involve the disputes that arise when the women serving as surrogates decide to contest custody after the children are born.

The ruling by Judge Schultz dealt with just such an issue.

In 2005, Angelia G. Robinson entered into a contractual agreement with her brother, Donald Robinson Hollingsworth and his spouse Sean Hollingsworth. That agreement outlined what is referred to as gestational surrogacy—Robinson agreed to carry the pregnancy and then relinquish all parental rights for the child to her brother and his partner after the birth. After arriving at this agreement, they proceeded with the implantation of an egg from an anonymous egg donor, fertilized by sperm from Sean Hollingsworth and then implanted in Ms. Robinson’s uterus using invitro-fertilization.

The trio ended up in court when Robinson decided to file for custody of the twin girls she later delivered. Surrogacy agreements like these rarely go to court, according to Raegan Rasnic, a family law, adoption and assisted reproduction lawyer in Washington State. She explained that in situations where there is no compensation for the surrogacy—often known as “altruistic” or “compassionate” surrogacy—there is usually a relationship between the intended parents and the surrogate, which, in her view, mitigates the risk of disputes like the one in this New Jersey case.

The precedents set by the rare cases that do go to court make up the body of case law that affects the practice of surrogacy nationwide. The 1986 “Baby M” case is perhaps the most famous surrogacy case, and one of the first to bring the issue into the public discourse. Harold Cassidy, the same legal counsel used by Angelia Robinson in the case against her brother also brought this controversial case to trial in New Jersey. In the Baby M case, Mary Beth Whitehead had agreed to serve as surrogate for a couple in exchange for compensation totaling $10,000. After she gave birth, Whitehead then decided to file for custody of Baby M, who had been created using Whitehead’s egg and the sperm of the intended father, William Stern.

The judge in this case ruled that the surrogacy agreement they had signed was void—based on the argument that the contract was in conflict with existing public policy. He stated, “There are, in a civilized society, some things that money cannot buy.” Stern was nonetheless eventually given custody of Baby M, because in situations where these contracts are thrown out, the judge must rule for custody based on the “best interest of the child,” and the court deemed Stern best suited to be the custodial parent.

Some surrogacy advocates had hoped the most recent NJ case would provide the opportunity to revisit the Baby M decision and New Jersey’s policy against surrogacy. Former bioethics professor at Brown University Dr. Jacob Appel had hoped the ruling might look more like the 1990 California decision, Johnson v. Calvert. In that case, the California Supreme Court granted custody to the intended parents in a gestational surrogacy custody dispute. The Johnson case upheld the contract between surrogate and intended parents, and ruled that intent did matter in this situation.

Instead, Judge Schultz effectively upheld the original Baby M ruling, arguing that the fact that Robinson was only a gestational surrogate (meaning the embryo was not created with her egg) did not matter—the surrogacy contract is still considered void and Robinson is the legal mother of the twins. A further case will decide who will be given custody. This means surrogacy contracts, gestational or otherwise, have little hope of being honored in New Jersey, and couples will continue to seek out other jurisdictions that might look more favorably upon their arrangements.

Feminist Perspectives on Surrogacy

In addition to the legal complexity surrounding surrogacy, opinions about surrogacy vary widely. There seems to be little consensus, even among feminists or the reproductive rights community, about the issue. There are a number of questions at hand: whether surrogacy contracts should be upheld, whether compensation for the surrogate should be allowed, whether it matters where the eggs and sperm come from and who they belong to.

During the Baby M case, a group of well-known feminists, including Gloria Steinem and Betty Friedan, issued an amicus brief in 1987 in opposition to commercial surrogacy and surrogacy contracts. According to the New York Times, the brief argued:

“Legalizing a system that allows women, for a fee, to bear children for childless couples by being impregnated with the husband’s sperm will lead to the exploitation of women, especially poorer ones, by more affluent couples. ”As technology develops, the ‘surrogate’ becomes a kind of reproductive technology laboratory,” the brief states. ”In short, she has been dehumanized and has been reduced to a mere ‘commodity’ in the reproductive marketplace.”

The foundation and individual signers also argue that surrogacy violates the relationship between a mother and child recognized by the Federal and state Constitutions, as well as state policy and laws ”prohibiting the trafficking in human lives, particularly the buying and selling of infants and children.”

Barbara Katz Rothman, one of the original signers of the ‘87 amicus brief, states that her views have not changed. She explained, “If a woman is standing in front of me and is pregnant, the baby in her belly is hers. It doesn’t change depending on the sperm or eggs. Every pregnant person is the mother of the baby in her body.”

Katz-Rothman takes issue with the concept of surrogacy itself. She explained, “The language of surrogacy is wrong. She is not a surrogate. She is not standing in for someone else. It’s her baby. If you want to make an adoption agreement, make an adoption agreement. You can’t erase this woman like she doesn’t count. She’s not substituting for the mother of that baby—she is the mother of that baby.”

Katz Rothman’s perspective gets to the heart of the matter—the real issue here is the definition of motherhood, and whether that definition can be altered by a legal contract.

Appel disagrees with Katz Rothman. He believes legally prohibiting surrogacy, either commercial or altruistic, is sexist. In an article in the Huffington Post responding to the recent NJ decision, he explained:

“There are few occupations in the world for which either gender is uniquely qualified, yet, at least with our present technological limitations, serving as a surrogate fetal carrier is one of them. One of the only others is serving as a sperm donor — and, while sperm donation may be controversial as it pertains to offspring, one never hears legislators or courts worried that male donors will be “degraded” by the process. The double-standard is apparent.”

Upon further investigation into the arguments made by the legal counsel for the surrogates and the judges involved in the NJ anti-surrogacy cases, Appel’s argument of sexism appears to hold some weight. Both Harold Cassidy, the lawyer in the Baby M and Robinson cases, and Judge Schultz are openly conservative. Cassidy’s other current legal work focuses on defending extremely anti-choice initiatives. On Cassidy’s website he describes himself:

“Long known as an advocate and defender of the rights of pregnant mothers…he is widely recognized as the leading attorney in the nation in protecting pregnant mothers against the excesses and abuses of an abortion industry which violates the rights and interests of the women of the nation.”

The connection between anti-surrogacy and anti-abortion movements is not limited to Cassidy’s website and case history. Minnesota governor Tim Pawlenty, well known for his anti-choice views, vetoed legislation that would have legalized commercial surrogacy in the state.

Best Practices and Legislative Protections

In the fight against legalized commercial surrogacy, conservatives and anti-surrogacy feminists make unusual bedfellows. However despite both groups’ attempts to sway public opinion, as a practice surrogacy is gaining popularity in the US and has become much more socially acceptable than it was during the days of the Baby M case, according to Jessica Arons, Director of the Women’s Health and Rights Program at the Center for American Progress. In response to the increase in the practice, many lawyers and advocates who work on surrogacy issues remain neutral on the ethics of surrogacy, choosing instead to establish “best practices” for surrogacy agreements to ensure the rights of all parties are protected.

Kathryn Hinsch, founder and Board President of the Women’s Bioethics Project (WBP), is one of these advocates. Her Washington State group considers itself to be “solidly pro-choice with a critical optimism toward science.” WBP, in collaboration with Legal Voice, has been working with Representative Jamie Pederson a Washington state legislator who introduced a bill into the state Congress to legalize commercial surrogacy. Pederson is a gay man who had children with a surrogate, but had to go to California due to Washington’s laws. While WBP has maintained a neutral position on the bill, they’ve worked closely with Pederson to draft provisions within the proposed legislation, including: a requirement for robust informed consent, and a guarantee that surrogates could not be asked to give up their constitutionally protected reproductive rights and that no particular type of family would be discriminated against.

The legal, ethical, and public realm of surrogacy remains a murky landscape ever unfolding within courts and public opinion. What is evident is that developments in reproductive technologies will continue to test the limits of our definitions of parenthood and autonomy in this increasingly complex landscape of reproduction. It’s clear that the reproductive justice movement has a stake in this conversation.