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COMPENSATED SURROGACY
Martha A. Field*
INTRODUCTION
The question that was put to us is whether the widespread legalization
of gay marriage, supported by the Supreme Courts decision in United
States v. Windsor, 1 means that compensated surrogacy should be more
broadly legalized. This essay takes the position that Windsor has little
relevance to surrogacy, which will continue to be governed by state
rather than federal law. States do, and will, follow a wide spectrum of
policies on surrogacy, ranging from banning it and making it illegal to
promoting it by enforcing surrogacy contracts as ordinary commercial
transactions. The legalization of gay marriage need not affect states
surrogacy laws.
It is easy to understand why gay couples want to be able to have
genetically related babies; their reasons are the same as other couples,
and the desire is widespread. Why would anyone want to interfere with a
procedure that helps create loving and happy families and allows many
men, single or married, to have a genetically related child? From that
perspective, it seems cruel to deny this procedure to gay male couples, to
couples in which the wife is infertile, or to single persons, for that
matter.2
But surrogacy is not problem-free. It raises serious issues of
commodificationof sex, of childbirth, of birthmothers, and of
childrenby allowing contracts, sales, and money to govern these once
noncommercialized areas of life. Such commercialization of childbirth
could profoundly affect the kind of society in which we live. Surrogacy
also arguably exploits women instead of liberating them. Accordingly
the calls to legalize surrogacy further are joined by calls to eliminate

Langdell Professor of Law, Harvard University. I wish to thank Rachel Silverman Dolphin for
excellent research assistance.
1. ___ U.S. ___, 133 S. Ct. 2675 (2013).
2. Couples in which only the male is infertile and most lesbian couples will not require surrogacy;
they will simply have to purchase sperm and undergo artificial insemination, an easier and less
expensive procedure that raises fewer ethical concerns.

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surrogacy altogetheror to restrict it as fully as possible.

Before evaluating the competing concerns, I will quickly review the
background of surrogacy law in the United States and describe the state
of surrogacy and surrogacy law today. I then will discuss why Windsor
and the gay marriage decisions in general do not affect surrogacy law
and how the concerns of commodification of childbearing and
exploitation of vulnerable birthmothers may legitimately discourage
states from adopting strong pro-surrogacy policies. I conclude that there
is no necessity for states to liberalize their surrogacy laws in view of the
widespread access to surrogacy that already exists.
I.

TRADITIONAL SURROGACY

Surrogacy first came to widespread public attention in the United

States in the 1980s, especially in connection with the Baby M case, 3
which involved what now is often called traditional surrogacy.
Typically the husband of an infertile wife furnishes his sperm to a
woman (surrogate) who supplies half of the genetic material for the
baby-to-be as well as carrying the pregnancy and enduring the delivery.
The traditional surrogate (who is also the genetic mother and the
birthmother) is compensated for her services and expenses and is
expected to turn the baby over to the contracting couple at birth. The
vast majority of birthmothers do so, and the arrangement is considered
successful; judicial enforcement of the contract is unnecessary.
The Baby M case concerned the problem that arises when the
birthmother changes her mind and wants to keep the baby. Mary Beth
Whitehead had entered into a surrogacy agreement with William and
Elizabeth Stern, but after the childs birth, Ms. Whitehead decided that
she could not give up her child. 4 The central issue in the Baby M
litigation was whether she or the Sterns would obtain custody. 5 The New
Jersey Supreme Court ruled that the surrogacy contract was void as a
violation of public policy and that custody would be decided, not on the
basis of the contract, but instead as it usually is in custody contests
between genetic parents, on the basis of the best interests of the child. 6
In 1988 I wrote a book on the subject. 7 My recommendation was that
states recognize surrogacy but not enforce surrogacy contracts until and
3.
4.
5.
6.
7.

In re Baby M, 537 A.2d 1227 (N.J. 1988).

Id. at 1236.
Id. at 123637.
Id. at 1234.
MARTHA A. FIELD, SURROGATE MOTHERHOOD (1st ed. 1988).

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unless the mother voluntarily turns the child over to the contracting
parents after birth. 8 The birthmother would not be committed on the
basis of a promise made before the baby was born, just as a birthmother
is not when she promises an adoption.
Some proponents of surrogacy have considered that proposal antisurrogacy or unfriendly to surrogacy, 9 but I consider nonenforcement a
neutral position for a state to adopt. The state neither endorses and
encourages surrogacy by enforcing surrogacy arrangements and treating
them as ordinary contracts, nor does it make them illegal. Paid surrogacy
can and does continue under such a nonenforcement regime. True, it
would be too risky to enter into a contract if the genetic father were
required to pay child support even when the birthmother reneged on the
deal. 10 I recommended that, if state legislatures wanted surrogacy to
continue as an option, legislatures should give the intended father the
option to walk away, rather than serving as a parent (by visiting and
paying child support, for example). 11 Surrogacy would continue, with
persons taking every precaution to choose a surrogate who would not
change her mind, a precaution that is still important in todays world.

8. Id. at 16.
9. See, e.g., Miriam Prez, Surrogacy: The Next Frontier for Reproductive Justice, RH REALITY
CHECK (Feb. 23, 2010, 6:00 AM), http://rhrealitycheck.org/article/2010/02/23/surrogacy-nextfrontier-reproductive-justice/.
10. It is true that there continue to be unintended fathers even though they are clearly required, in
nonsurrogacy contexts, to provide child support for their offspring. Many men do continue to have
unprotected sex despite the threat of undesired parenthood and child support payments. But even
though the threat is not sufficient to deter men from having sex, it might nonetheless be sufficient to
prevent men from entering surrogacy arrangements, a far more deliberative decision. In short, it is
much more difficult to give up sex than it is to give up surrogacy contracts.
11. This suggestion would make an exception to current law, which holds biological fathers
responsible as parents even though the child was unintended and was born out of wedlock. See, e.g.,
Milla v. Habluetzel, 456 U.S. 91, 92 (1982) (This Court has held that once a State posits a
judicially enforceable right of children to support from their natural fathers, the Equal Protection
Clause of the Fourteenth Amendment prohibits the State from denying that same right to
illegitimate children.); Gomez v. Perez, 409 U.S. 535, 538 (1973) (We therefore hold that once a
State posits a judicially enforceable right on behalf of children to needed support from their natural
fathers there is no constitutionally sufficient justification for denying such an essential right to a
child simply because its natural father has not married its mother.); MASS. GEN. LAWS ANN.
ch. 273, 15 (West 2014) (punishing a parent who does not contribute to support of a child born out
of wedlock). Just as state law cannot constitutionally alter this parental obligation, neither can it be
waived or surrendered by the parties, whether by contract or otherwise. See, e.g., In re Marriage of
Hammack, 114 Wash. App. 805, 808, 60 P.3d 663, 664 (2003). Any such contract is not
enforceable. Id.

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WASHINGTON LAW REVIEW

AN OVERVIEW OF SURROGACY AS IT IS PRACTICED

TODAY

I will not repeat here my arguments for states to recognize and

regulate surrogacy without enforcing surrogacy contracts over a
birthmothers objection, and arguably not all of them apply to surrogacy
today. The biggest change in surrogacy practice is that traditional
surrogacy has been largely replaced by gestational surrogacy, in
which the birthmother has no genetic tie to the child. 12 She is simply the
birthmother or gestator.
Whether to enforce a contract when the birthmother changes her mind
remains an issue. There once was apparent unanimity for
nonenforcement of surrogacy contracts, 13 but in 1990 the California
Supreme Court ended that consensus in Johnson v. Calvert, 14 a
gestational surrogacy case. In Johnson v. Calvert, the opposite-sex
couple who contracted for surrogacy furnished all the genetic material,
so the birthmother had no genetic tie to the baby. 15 When the
birthmother attempted to retain the newborn, the California courts
enforced the surrogacy contract, granting custody to the contracting
couple. 16 The parties original intention controlled.
The Johnson v. Calvert precedent was, however, confined to
California. Ever since that decision, states have taken different positions
on whether to treat surrogacy as a legitimate commercial enterprise; 17 or
to adopt a strategy of nonenforcement (by calling the contract void, for
example or by using an adoption model for surrogacy); 18 or even to
make surrogacy illegal and punishable. 19 States also have differed (in
court decisions as well as written laws) on whether the law should treat
gestational and traditional surrogacy alike, 20 and also on whether the law
12. See Peter R. Brinsden, Gestational Surrogacy, 9 HUM. REPROD. UPDATE 483, 483 (2003);
Usha Rengachary Smerdon, Crossing Bodies, Crossing Borders: International Surrogacy Between
the United States and India, 39 CUMB. L. REV. 15, 18 (2008).
13. See MARTHA A. FIELD, SURROGATE MOTHERHOOD: THE LEGAL AND HUMAN ISSUES 15569
(expanded ed. 1990).
14. 851 P.2d 776 (Cal. 1993).
15. Id. at 778.
16. Id. at 778, 787.
17. See generally Clyde Haberman, Baby M and the Question of Surrogate Motherhood, N.Y.
TIMES (Mar. 24, 2014), http://www.nytimes.com/2014/03/24/us/baby-m-and-the-question-ofsurrogate-motherhood.html.
18. Id.
19. Id.
20. For example, California treats traditional and gestational surrogacy differently, while New
Jersey treats them the same. See, e.g., In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893 (Cal. Ct.

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should draw a distinction between unpaid or altruistic surrogacy and

compensated surrogacy. 21 But compensated gestational surrogacy is the
main focus of both those who want surrogacy to be more broadly
available and those who would like to cut back on it, and it is
overwhelmingly the kind of surrogacy that is practiced today. 22
Surrogacy is run largely by private for-profit agencies which, for a
sizeable fee, bring together the contracting parents-to-be and the
birthmother. 23 But because gestational surrogacy is the method of
choice, an egg donor must often be obtained as a third contributor to the
creation of the child. Couples in which the wife is infertile and gay male
couples will require an egg donor and usually they, often with the help
of an agency, will arrange to purchase eggs. Gay male couples (married
and unmarried) constitute a substantial part of domestic surrogacy
business today. 24
A. The Availability of Surrogacy
Surrogacy has changed significantly since the 1980s, both
domestically and abroad. In the United States, surrogacy laws vary
widely. Some states are quite favorable to the practice, while others go
so far as to criminalize it. An international market for surrogacy has also
emerged, with a few countries currently marketing themselves as
surrogacy destinations. 25 Couples can go to these destinations to enter
App. 1994); A.G.R. v. D.R.H., 2009 N.J. Super. Unpub. LEXIS 3250 (Ch. Div. Dec. 23, 2009).
21. In some states in the United States, altruistic surrogacy is permissible, while compensated
surrogacy is forbidden. See KY. REV. ST. 199.590 (West, Westlaw current through end of 2014
legislation); In re Roberto d.B., 923 A.2d 115, 13031 (Md. 2007); 85 Op. Md. Atty Gen. 348, 366
n.22 (Md. 2000); 83 Op. Okla. Atty Gen. 162 (Okla. 1983). Similarly, England, Belgium, and
Canada ban compensated surrogacy. See, e.g., Surrogacy Arrangements Act, 1985, c. 49. (Eng.);
Hannah Flint, Legal Situation of Surrogacy Explained, TELEGRAPH (Aug. 1, 2014, 5:09 PM),
http://www.telegraph.co.uk/news/worldnews/asia/
thailand/11006524/Legal-situation-of-surrogacy-explained.html.
22. Anemona Hartocollis, And Surrogacy Makes 3, N.Y. TIMES, Feb. 20, 2014, at E1.
23. See Morgan Holcomb & Mary Patricia Byrn, When Your Body Is Your Business, 85 WASH. L.
REV. 647, 650 (2010) (stating that surrogacy is a multi-billion dollar business and that surrogacy
agencies recruit and rigorously screen potential surrogates).
24. See, e.g., id. (stating that gestational surrogacy accounts for almost all surrogacy in the
United States and discussing gay men using gestational surrogacy to have children).
25. Some governments have adopted policies to promote themselves as medical tourism and
surrogacy destinations. The principal countries for surrogacy, other than the United States, are India,
Thailand, the Mexican state of Tabasco, and Ukraine. See Tamar Lewin, Coming to U.S. for Baby,
and Womb to Carry It, N.Y. TIMES, July 6, 2014, at A1; Thomas Fuller, Thailands Business in Paid
Surrogates May Be Foundering in a Moral Quagmire, N.Y. TIMES, Aug. 28, 2014, at A12.
Although surrogacy has thrived in Thailand, well known for its sex industries, in fact it has been
neither sanctioned nor forbidden by law. Fuller, supra, at A12. The Thai government is now trying

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into a surrogacy contract at a lower price than they might find in the
United States. Ultimately, these different surrogacy options make
commercial surrogacy available to individuals and couples who have the
money to afford it.
1. Availability in the United States
In the 1980s and before, state laws on surrogacy were largely
indeterminate, but in general, surrogacy contracts were legal but
unenforceable. 26 Internationally, the United States was the country
deemed most accepting of surrogacy. 27 After Baby M and Johnson v.
Calvert, state legislatures began to adopt more explicit and focused
positions on surrogacy. 28 In states where the legislature passed no law,
state courts were presented with cases in which they had to decide

to cut back on the surrogacy industry, with the junta claiming it is a national scandal and vowing to
allow only altruistic surrogacy, with no brokers, agencies, or advertising. Id.
The story is similar in India. Although commercial surrogacy became legal in India in 2002 and
has become a billion-dollar-a-year industry, there are no laws regulating it. Jennifer Kirby, These
Two Americans Want Babies Through Indian Surrogates. Its Not Been Easy, NEW REPUBLIC (Dec.
1, 2013), http://www.newrepublic.com/article/115873/fertility-tourism-seeking-surrogacy-indiathailand-mexico. The Indian Council of Medical Research has promulgated some recommended
guidelines for surrogacy agencies to follow; for example, restricting surrogacy to opposite-sex
married couples. Sarah Mortazavi, It Takes a Village To Make a Child: Creating Guidelines for
International Surrogacy, 100 GEO. L.J. 2249, 2272 (2012). But surrogacy agencies and IVF clinics
in India actually operate under a system of self-regulation, creating their own rules and practices
and not accountable for them to any authority. Kristine Schanbacher, Indias Gestational Surrogacy
Market: An Exploitation of Poor, Uneducated Women, 25 HASTINGS WOMENS L.J. 201, 218
(2014).
Since at least 2007, the Indian Ministry of Health and Family Welfare has been attempting to
create an official regulatory mechanism. By 2008 it had drafted and promulgated the Assisted
Reproductive Technology (Regulation) Bill in an effort to govern the industry. Smerdon, supra note
12, at 17. Since then the bill has undergone several drafts. The 2008 and 2010 drafts were both
widely circulated for public comment, Anil Malhotra, Ending Discrimination in Surrogacy Laws,
THE HINDU (May 3, 2014, 1:04 AM), http://www.thehindu.com/opinion/op-ed/endingdiscrimination-in-surrogacy-laws/article5970609.ece, but the latest version, the 2013 draft, has been
designated top secret and is not available for public review. Id. That version may be introduced at
the next Winter Session of the Indian Parliament. Salome Phelamei, Bill to Regulate Surrogacy, ZEE
NEWS INDIA (Oct. 18, 2014, 5:57 AM), http://zeenews.india.com/news/health/health-news/bill-toregulate-surrogacy-ivr-soon-in-india-foreigners-to-be-barred_1486426.html.
26. See FIELD, supra note 13, at 15575.
27. Smerdon, supra note 12, at 22.
28. See, e.g., Act of Feb. 10, 1988, No. 674, 1, 1988 Neb. Laws 572 (codified at NEB. REV.
STAT. ANN. 25-21,200 (West, Westlaw through 2014 Reg. Sess.)) (Nebraska); Act of Mar. 5,
1988, No. 175, 1988 Ind. Acts 2050; Act of July 1, 1997, No. 1, 1997 Ind. Acts 255 (codified at
IND. CODE ANN. 31-20-1-1 to 31-20-1-2 (West, Westlaw through 2d Reg. Sess. & 2d Technical
Sess. 2014)) (Indiana); Assisted Conception Act, ch. 184, 5, 1989 N.D. Laws 561, 562 (codified at
N.D. CENT. CODE ANN. 14-18-05 (West, Westlaw through 2013 Reg. Sess.)) (North Dakota).

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whether surrogacy was legal and enforceable or was not.29 (A decision

to criminalize it would have to come from the legislature.)
A number of states currently have laws in place that affirmatively
allow surrogacy to take place within their borders. The state that
currently is the most friendly to surrogacy is California, 30 although it
may be more expensive there than in some other states. Since Johnson v.
Calvert, the California courts have continually supported enforcement of
gestational surrogacy contracts. 31 Moreover, they have not imposed
restrictions on access to surrogacy like those that exist in other
jurisdictions.
Other states also provide for enforcement, but many of them restrict
the practice in other ways. Florida, for example, requires that either the
egg or the sperm (or both) come from the intended parents. 32
Additionally, it permits the contract only if a licensed physician has
determined that the intended mother cannot carry a baby on her own. 33
Florida also limits the amount that can be paid to the birthmother to
reasonable expenses, 34 and it places certain obligations on the
birthmother that are not required of pregnant women outside of the
surrogacy context. For example, a requirement that the birthmother
adhere to reasonable medical instructions about her prenatal health. 35
And in order to obtain legal parental status, the intended parents must
petition a court, after the childs birth, and participate in a court hearing
to determine whether the statutory requirements have been met. 36
Perhaps most relevant, Florida allows only a married couple to
contract for surrogacy. 37 In addition, Florida purports to ban same-sex

29. Both Baby M and Johnson v. Calvert are themselves examples of courts creating the rules in
the absence of legislative action.
30. Peter Nicolas, Straddling the Columbia: A Constitutional Law Professors Musings on
Circumventing Washington States Criminal Prohibition on Compensated Surrogacy, 89 WASH. L.
REV. 1235, 1245 (2014) ([T]he estimated costs for pursuing gestational surrogacy in California
using one of its more popular agencies is $150,000 or more.) (citing Cost of Hiring a Surrogate,
GROWING GENERATIONS, http://www.growinggenerations.com/surrogacy-program/intended-parents
/surrogacy-cost/ (last visited Jul. 14, 2014)).
31. See, e.g., Buzzanca v. Buzzanca, 61 Cal. Rptr. 4th 1410, 141213 (Cal. Dist. Ct. App. 1998).
32. See FLA. STAT. ANN. 742.13(2) (West, Westlaw current through Ch. 22 (end) of 2014 Sp.
A Sess. Of 23d legislature).
33. See id. 742.15(2)(a).
34. See id. 742.15(4).
35. See id. 742.15(3)(b).
36. See id. 742.16 (1)(3).
37. See id. 742.15(1).

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marriage, 38 thereby limiting surrogacy to opposite-sex couples in which

the wife is infertile. A district court has held that Floridas ban on samesex marriage is unconstitutional; 39 the case is currently on appeal to the
U.S. Court of Appeals for the Eleventh Circuit. 40 If the marriage ban is
struck down, it will be interesting to see whether Florida attempts to
persist in denying surrogacy, although not marriage, to same-sex
couples.
Floridas system illustrates that whether a state claims to enforce
surrogacy contracts is not necessarily the decisive factor in considering
whether it is a surrogacy-friendly state. Even a state that purports to
honor the contracts can encumber the process with other restrictions and
regulations. 41 Utahs system is similar to Floridas, requiring the
surrogacy arrangement to be validated by a court, 42 requiring the
intended parents to be married to each other 43 and at least one of them to
be genetically related to the child,44 requiring all parties to attend
counseling, 45 and requiring any payment to be reasonable. 46 In
addition, either the intended parents or the birthmother must have been

38. See id. 741.212 (stating that marriages between people of the same sex are not recognized
for any purpose in Florida).
39. Brenner v. Scott, 999 F. Supp. 2d 1278, 1282, (N.D. Fla. 2014).
40. Brenner v. Armstrong, No. 14-14061 (11th Cir. appeal filed Sept. 5, 2014).
41. Certain restrictions are very common. For example, almost all states and agencies with
articulated policies require the birthmother to be over twenty-one years old, to have already had a
child, and to undergo a physical and psychological examination. Requirements in excess of such
common and very reasonable ones can reduce the desirability of surrogacy or access to it, even in an
enforcement jurisdiction like Florida. New Hampshires earlier statute, replaced just this past
summer, was an extreme case of an enforcement jurisdiction that nonetheless appeared unfriendly to
surrogacy. First, there was a regulation that the birthmother could be compensated only for
expenses. N.H. REV. STAT. ANN. 168-B:25 (West, Westlaw through 2013 Reg. and Special Sess.)
(repealed 2014). In addition, the birthmother had seventy-two hours after birth in which she could
opt to keep the child. Id. 168-B:25 (repealed 2014). Moreover, surrogacy was available only to
married couples with a medical need to use it, id. 168-B:17 (repealed 2014), and egg donors were
not allowed; the egg had to come either from the intended mother or from the birthmother. Id.
168-B:17 (repealed 2014). New Hampshire further required a home study of all the parties, id.
168-B:18 (repealed 2014), and court approval prior to entering the contract, id. 168-B:16(I)(b),
168-B:23 (repealed 2014). And while it allowed surrogacy, it made it criminal for third persons to
receive a fee for facilitating a surrogate arrangement, id. 168-B:16, B:30 (repealed 2014), thus
effectively banning surrogacy agencies from the state. Yet even with these extreme restrictions,
New Hampshire was considered a surrogacy-enforcement state.
42. UTAH CODE ANN. 78B-15-801(4), 78B-15-803 (West, Westlaw through 2014 Gen. Sess.).
43. Id. 78B-15-801(3).
44. Id. 78B-15-801(5).
45. Id. 78B-15-803(2)(d).
46. Id. 78B-15-803(2)(h).

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resident in Utah for ninety days. 47 Texas 48 and Virginia 49 also have
detailed statutes governing and allowing surrogacy enforcement but, like
Florida and Utah, they regulate the practice and restrict access.
Delaware 50 and New Hampshire, 51 like California, enforce surrogacy
contracts without imposing cumbersome requirements and, like
California, they permit intended parents to get a pre-birth order from a
court determining legal parentage before the child is born. Nevada also
enforces surrogacy contracts but does not allow a pre-birth order; the
intended parent becomes a parent upon birth of the child. 52 Finally,
several states have court decisions suggesting that they will enforce
surrogacy contracts, but partly because the law is judge-made and there
are no governing statutes, there are no regulations restricting surrogacy
or denying access to particular persons. Those states include
Massachusetts, 53 Maryland, 54 and Wisconsin. 55
States need not be committed to enforcing surrogacy contracts in
order to allow the practice of surrogacy, and many surrogacy
arrangements are successfully completed in states that would not have
enforced the contract if the birthmother had changed her mind. 56
47. See id. 78B-15-802(2).
48. See TEX. FAM. CODE ANN. 160.754 (West, Westlaw through 3d Called Sess. 2013)
(requiring the intended parents to be married to each other and requiring both of them and the
birthmothers husband, if she is married, to agree to the procedure at least two weeks before
implantation in the birthmother occurs).
49. See, e.g., VA. CODE ANN. 20-156 (West, Westlaw through 2014 Reg. Sess. & 2014 Special
Sess.) (criminalizing third-party facilitation of a surrogacy arrangement); id. 20-162 (requiring
court approval, with elaborate provisions voiding contracts that were not pre-approved).
50. DEL. CODE ANN. tit. 13, 8-801 to 8-813 (West, Westlaw through 2014 ch. 428).
51. See N.H. REV. STAT. ANN. 168-B:1 to 168-B:21 (West, Westlaw through ch. 330 of the
2014 Reg. Sess.).
52. See NEV. REV. STAT. ANN. 126.710126.710.810 (West, Westlaw through 2013 Reg. &
Special Sess.).
53. See Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285 (Mass. 2001); Hodas v.
Morin, 442 Mass. 544 (Mass. 2004).
54. See In re d.B., 399 Md. 267 (Md. 2007) (ordering removal of a gestational mothers name
from a birth certificate when both the intended father and the gestational mother requested that her
name be removed).
55. In re F.T.R., 833 N.W.2d 634 (Wisc. 2013); Thomas J. Walsh, Viewpoint: Wisconsins
Undeveloped Surrogacy Law, 85 WISC. LAWYER (Mar. 2012), available at http://www.wisbar.org/
newspublications/wisconsinlawyer/pages/article.aspx?Volume=85&Issue=3&ArticleID=2445; Scott
Bauer, Wisconsin Supreme Court Upholds Surrogate Mother Agreements, TWIN CITIES PIONEER
PRESS (July 11, 2013, 10:32 AM), www.twincities.com/ci_23640952/supreme_court_upholdssurrogate_mother_agreements (agreements can be enforced unless they are not in the best interests
of the child, but they cannot terminate the parental rights of the birthmother; adoption processes are
required).
56. Surrogacy takes place in these states even though the parties are aware that a contract will not

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Arkansas, Connecticut, and Tennessee, for example, have laws

facilitating surrogacy but explicitly taking no position on enforcement of
surrogacy contracts, 57 an issue that becomes relevant only if the
birthmother wants to reject the contract.
Successes also occur in states where there is no regulation
whatsoever. As Professor Nicolas has explained, Oregon appears
friendly to surrogacy although it has no written law on the subject. 58
Jurisdictions with no law will become regulated either when their
legislature chooses to act or when surrogacy cases come before state
courts. Until then states with no law can be and are sites for surrogacy;
contracts performed there will escape any judicial scrutiny unless
something goes wrong. Indeed, surrogacy can be arranged in any state
that does not make it criminal. Even jurisdictions that have declared
surrogacy contracts unenforceable, like New Jersey, 59 Indiana, 60 or
Nebraska, 61 for example, can be sites for full voluntary performance of a
surrogacy agreement. When the contract is actually performed, the only
real problem lies in states that have laws making the birthmother (and
sometimes her husband) the legal parent(s) of the child. Such laws may
effectively require an adoption by the intended mother, thereby reducing
some of the appeal of a surrogacy arrangement.
In general, where state legislatures have adopted surrogacy
regulations the governing rules are clearer and much more detailed than
in jurisdictions where courts, unguided by legislation, have had to
formulate surrogacy law by deciding the few cases presented to them.
Even though many of the regulations that have been adopted may seem
misguided, there is some advantage in having legislatures participate.
Whether or not it opts to enforce surrogacy contracts, any state that
recognizes surrogacy and does not criminalize it can then regulate rules
of access, for birthmothers as well as would-be parents, and, most

be enforced. DEBORA L. SPAR, THE BABY BUSINESS: HOW MONEY, SCIENCE AND POLITICS DRIVE
THE COMMERCE OF CONCEPTION 71 (2006).
57. See ARK. CODE ANN. 9-10-201 (West, Westlaw through 2014 2d Extraordinary Sess.);
CONN. GEN. STAT. ANN. 7-48a (West, Westlaw through 2014 Reg. Sess.); TENN. CODE ANN.
36-1-102 (West, Westlaw through 2014 2d Reg. Sess.); Raftopol v. Ramey, 12 A.3d 783, 785 n.4
(Conn. 2011).
58. Nicolas, supra note 30, at 124649.
59. See In re Baby M, 537 A.2d 1227, 1240 (N.J. 1988); A.H.W. v. G.H.B., 772 A.2d 948, 952
54 (N.J. Super. Ct. Ch. Div. 2000).
60. See IND. CODE 31-20-1-1, 31-20-1-2 (West, Westlaw through 2d Reg. Sess. & 2d
Technical Sess. 2014).
61. See NEB. REV. STAT. 25-21,200 (West, Westlaw through 2014 Reg. Sess.).

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important, it can regulate surrogacy agencies.62 Regulation and

supervision of intermediaries are necessary; fraud has been a problem, as
the New York Times has recently reported. 63
Moreover, a state law regime that recognizes surrogacy even without
providing for judicial enforcement of the contract can still respect the
parties intentions and support the contract terms once the baby is given
to the intended parents. 64 States that call the contract void, as New
Jersey does for example, may not look to the contract at all; but other
states have a nonenforcement policy that is relevant only to the
occasional custody dispute. Apart from that, the contract controls.
So there are many different models that states can adopt. Full
enforcement and acceptance of commercial surrogacy as a business to be
encouraged is not the only model compatible with surrogacy, although it
may be the safest one for intended parents. Within nonenforcement
jurisdictions, there are many variations that can still lead to successful
surrogacy arrangements.
A final model is to make compensated surrogacy illegal, as it is in
Washington, 65 New York, 66 Michigan, 67 and the District of Columbia. 68
Those jurisdictions basic regulation is that paid surrogacy cannot exist,
making violations punishable. But even though it is illegal to arrange or
perform surrogacy contracts inside such jurisdictions, residents can use
the services of nearby states. They may not even have to travel to do so.
Even though few states explicitly treat surrogacy as a fully legitimate
62. Several states criminalize third parties participating in arranging surrogacy, even while
allowing individuals to engage in surrogacy within the state. See, e.g., VA. CODE ANN. 20-165
(West, Westlaw through 2014 Reg. Sess. & 2014 Special Sess.).
63. Thomas Fuller, Thailands Business in Paid Surrogates May Be Foundering in a Moral
Quagmire, N.Y. TIMES, Aug. 28, 2014, at A12; see also Tamar Lewin, A Surrogacy Agency That
Delivered Heartache, N.Y. TIMES, July 28, 2014, at A1.
64. There are other situations as well in which the contract is enforceable once performed, even
though it was not subject to specific performance beforehand. Parties cannot be forced to work
despite a contract, but when work is performed, the contract controls. Similarly, although promises
to marry are unenforceable, marriage is surely legal and effective when performed voluntarily by
both parties. And the same is true of a contract to give up a baby for adoption. The contracts are not
illegal and they are recognized, although the state would not enforce them against an unwilling
participant before the promise was performed.
65. Washington States statute makes compensated surrogacy criminal, and it imposes criminal
penalties. See WASH. REV. CODE 26.26.230, 26.26.250 (2012).
66. New York imposes only civil penalties on the principals to the surrogacy arrangement but
places criminal penalties on intermediaries. See N.Y. DOM. REL. LAW 121, 122, 123 (McKinney,
Westlaw through 2014 legislation).
67. See MICH. COMP. LAWS ANN. 722.859 (West, Westlaw through 2014 Reg. Sess. Act 282).
68. The District of Columbia penalizes all types of surrogacy. See D.C. CODE 16-401, 16-402
(West, Westlaw through Sept. 1, 2014).

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commercial enterprise, the United States is still considered the prime

destination for people seeking surrogacy. Many well-to-do foreigners
come to the United States for surrogacy. 69 The procedure is much more
expensive than elsewhere 70 (with the exception of the Chinese black
market 71 described infra in Part III.E.), but the intended parents trust
surrogacy agencies in United States to produce appropriate birthmothers
and contracts that will be fulfilled. 72 Non-U.S. residents seeking
surrogacy come to states like California, 73 where surrogacy is openly
promoted, and they also come to states with less explicit or less
complete surrogacy protections. 74
People from other countries also come here because they have
confidence in U.S. living conditions and medical facilities. 75 Moreover,
many surrogacy agencies in this country accept all clients, including
gays and singles, and even fertile couples, who seek surrogacy merely
for convenience. As noted above, some states prohibit access by these
groups, and some agencies are selective even when state law does not
require that. 76 Foreign destinations also frequently impose access
restrictions; India, for example, recently revised its guidelines to
recommend surrogacy only for opposite-sex married couples. 77 Because
many states and agencies in the United States do not impose such
restrictions and because the surrogacy business in the United States is
relatively reliable, foreigners constitute a significant portion of
69. See, e.g., Lewin, supra note 25 (stating that the majority of clients of large surrogacy agencies
in the U.S. are not U.S. residents).
70. See, e.g., id.
71. Ian Johnson & Cao Li, China Experiences a Booming Underground Market in Child
Surrogacy, N.Y. TIMES, Aug. 3, 2014, at A4.
72. See, e.g., Lewin, supra note 25; Karishma Vyas, Indian Law Forbids Same-Sex Surrogate
Parents, AL JAZEERA (July 16, 2014, 7:32 AM), http://www.aljazeera.com/video/asia/2014/07/
indian-law-forbids-same-sex-surrogate-parents-201471661231232873.html.
73. See, e.g., Tamar Lewin, Surrogates and Couples Face a Maze of Laws, State by State, N.Y.
TIMES, Sept. 18, 2014, at A1 (California has a booming surrogacy industry, attracting clients from
around the world.); Lewin, supra note 25 (characterizing California as friendly to surrogacy and
stating that more than 2000 babies will be born from U.S. surrogates for foreign intended parents).
74. Lewin, supra note 25.
75. Id. (For overseas couples, the big draw is the knowledge that many states have sophisticated
fertility clinics, experienced lawyers, a large pool of egg donors and surrogates, and, especially,
established legal precedent.).
76. Id. ([T]here has been a recent uptick in the number of clients seeking social surrogacy
that is, having someone else carry their baby so as not to damage their career, or their figure. And
not all agencies follow the guidelines.). But see id. ([M]ost surrogacy agencies say they will work
only with intended parents who cannot carry their own baby, as recommended by the guidelines of
the American Society for Reproductive Medicine.).
77. Vyas, supra note 72.

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American surrogacy clientele. 78

2. Availability of Surrogacy Internationally
In the 1980s the United States was the primary place in which
surrogacy was legal, 79 and after Johnson v. Calvert, enforcement of
gestational surrogacy contracts in California made it seem even more
reliable. Since then, international destinations like India,80 Thailand, 81
Ukraine, 82 and the Mexican state of Tabasco 83 have become important
centers for surrogacy. 84 While rich foreigners come to the United States,
many Americans (and others) look for birthmothers in countries that
have less well-developed economies in an attempt to save money. 85
They may indeed end up paying only half as much as what they would
pay in the United States, or even less. 86
So the predicted use of low cost international surrogacy 87 has come to
pass. Moreover, biotechnological developments, especially the ability to
send a fertilized egg to be implanted in a foreigners womb, have
allowed broader and even easier use of international surrogacy markets:

78. See Lewin, supra note 25 (reporting that the majority of clients at large surrogacy agencies in
the U.S. are foreigners).
79. Smerdon, supra note 12, at 22.
80. See, e.g., Fuller, supra note 63, at A12 (stating that India is the only Asian country other than
Thailand that allows surrogacy).
81. See id. (stating that Thailand provides surrogacy at a lower cost than the U.S., which makes it
more attractive for would-be parents).
82. See, e.g., NEW LIFE UKRAINE, http://www.newlifeukraine.com/ (last visited Sept. 23, 2014)
(noting various advantages to using surrogates in Ukraine, including lower costs, a short waiting
time, and favorable laws).
83. See Lewin, supra note 73.
84. Most Western European countries, for example Italy, France, and Germany, ban surrogacy
altogether. DEBORA L. SPAR, THE BABY BUSINESS: HOW MONEY, SCIENCE AND POLITICS DRIVE
THE COMMERCE OF CONCEPTION 71, 83 (2006). England bans only compensated surrogacy.
Surrogacy Arrangements Act, 1985, c. 49. (Eng.).
85. Lewin, supra note 63, at A1 (Those able to pay more than $100,000 for services often turn to
an American agency in a state where surrogacy is legal and fairly widely practiced. Those with less
money often go to India or to Mexico.); see also Lewin, supra note 25 (Because surrogacy is so
expensive in the United States, many couples travel to India, Thailand or Mexico, where the total
process costs half or less.).
86. Lewin, supra note 25. Sources differ as to the costs of surrogacy in various countries, and
even in the U.S. the prices can differ widely. Id. At least one agency in Ukraine advertises that the
cost is sixty to seventy percent less in Ukraine that in the United States. Advantages, NEW LIFE
UKRAINE, http://www.newlifeukraine.com/advantages (last visited Dec. 1, 2014).
87. See, e.g., FIELD, supra note 7, at 32, 4345 (predicting low-cost international surrogacy);
Bartha M. Knoppers & Sonai LeBris, Advances in Medically Assisted Conception: Legal, Ethical,
and Social Issues, 17 AM. J.L. & MED. 329, 341 (1991) (same).

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couples no longer have to travel in order to have their genetic material,

together with that of a donor egg, implanted in a foreigners womb.
Surrogacy operates differently in many countries than it does in the
United States. Regulations differ, and in many places there are no
regulations. 88 It is not uncommon in Mexico, Thailand, or India, for
example, for the birthmother to be required by the contract to stay in a
supervised dormitory for birthmothers and to sever or limit contact with
her husband and children during the pregnancy. 89 In addition, the
birthmothers diet and activities may be prescribed, 90 and she will not
have rights that would be recognized in the United States. 91 For
example, the contract may provide that the intended parents may
demand an abortion, a provision that would doubtless be illegal
throughout the United States. 92
Although international surrogacy is usually inexpensive by American
standards, the differences in national economies make the birthmothers
perspectives quite different. For their services, birthmothers in other
countries may take home a fee that is up to ten times their households
annual income. 93 That generous incentive may make surrogacy
especially difficult to resist for many. Some will be pressured by their
families, if not their life circumstances, to agree to this kind of
employment (pressures also present, of course, in the United States).
88. Of course there also are no explicit regulations in some of our states. But even without
regulation, constraints such as those imposed in India, Ukraine, Mexico, and Thailand would not be
tolerated. See, e.g., Johnson & Li, supra note 71, at A4; Seema Mohapatra, Achieving Reproductive
Justice in the International Surrogacy Market, 21 ANNALS HEALTH L. 191, 192 (2012); SCOTT
CARNEY, THE RED MARKET 13638 (2011).
89. See Johnson & Li, supra note 71, at A4; Mohapatra, supra note 88; CARNEY, supra note 88.
90. See Amrita Pande, Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker,
35 J. WOMEN CULTURE & SOCY 969 (2010); CARNEY, supra note 88, at 13638.
91. See Pande, supra note 90; CARNEY, supra note 88, at 13638.
92. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 6575 (1976) (holding that the
decision whether to abort belongs to the birthmother). If a husband is not permitted to dictate
abortion choices to his wife despite a marital contract and any other arrangement the couple has
made, surely a stranger cannot acquire by contract a right to choose abortion. State statutes often
make explicit this limitation on the contracting parents rights. See, e.g., TEX. FAM. CODE ANN.
160.754(g) (West, Westlaw through 3d Called Sess. 2013); UTAH CODE ANN. 78B-15-808(2)
(West, Westlaw through 2014 Gen. Sess.) (both forbidding surrogacy arrangements that restrict a
surrogates right to protect the fetus). But see Nicolas, supra note 30, at 125859; I. Glenn Cohen,
The Constitution and the Rights Not to Procreate, 60 STAN. L. REV. 1135, 119192 (2008).
93. See Pande, supra note 90, at 974 (stating that the payments that surrogates receive are often
four or five times as much as the surrogates annual household income); CARNEY, supra note 88, at
139 ($5,000 is more than [the Indian surrogate] would make in ten years of ordinary labor.);
Insight: Outsourcing to Indian Surrogate Mothers (CNN television broadcast Oct. 17, 2006)
(interviewing an attorney who states that in India a surrogate mother can earn ten times what her
husband earns); Mohapatra, supra note 88, at 193.

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So surrogacy is available today, whatever one thinks of it. Of course,

it is only available to people with substantial funds. If you have money,
however, you can buy both an egg donor and a birthmother,
domestically or internationally. And you can contact a commercial
agency, easily found on the Internet, to help you do it.
III.

SHOULD THE WINDSOR DECISION LEAD TO A

LOOSENING OF RESTRICTIONS ON PAID
GESTATIONAL SURROGACY?

I have trouble understanding why Windsor should lead to greater

legalization of commercial surrogacy. True, we have seen a widespread
legalization of gay marriage by the states. Further, it is a safe prediction
that the right to marry will soon be constitutionalized and thereby will
become the law in every state. I welcome this development. But why
should that affect commercial surrogacy?
A. No Necessary Connection Between Surrogacy and Marriage
An easy answer, of course, is that Windsor and the ensuing litigation
have added considerably to the number of married couples who may not
be able to have children in other ways, and in that sense there is added
pressure to legitimate this avenue to parenthood. But even a full-fledged
constitutional right to gay marriage would not importantly affect the case
for surrogacy, in my mind. After all, surrogacy in this country has not
been limited to married people. Before Windsor, gay couples used
surrogacy, whether or not they were legally married in their state of
residence, and unmarried gay couples still do. Opposite-sex unmarried
couples also use surrogacy, as do single men and even single women
who cannot carry a pregnancy. In short, there is no necessary connection
between marriage and surrogacy.
Because couples in which the woman is unable to become pregnant or
to carry a pregnancy have always needed surrogates in order to
produce a genetically related child, Windsor does not create a new
problem, or even a new set of issues, in relation to surrogate parenting.
It is true that children are often associated with marriage, and those
who marry often want to have children. In that sense it is likely that
Windsor has increased demand for surrogacy services. It would be nice
if marriage always entailed the ability to procreate, so that all couples,
given the right to marry, could choose to reproduce, but that has never
been the case. First comes love, then comes marriage, but these cannot
always be followed by a baby carriage. And, unfairly perhaps, it is much
easier for some to reproduce than others; like health, beauty, and

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intelligence, reproductive capacity is not evenly distributed.

B. Policy Arguments Against Allowing Surrogacy
Perhaps the suggestion that gay marriage should lead to further access
to and legitimation of paid surrogacy reflects the view that having access
to surrogacy is a right, albeit a right available only to those who have
funds to pay. Butunlike gay marriageconstitutional protection of
surrogacy is extremely unlikely. Among the reasons is that there are
legitimate policy arguments on both sides of the surrogacy issue.
Especially serious considerations disfavoring surrogacy are fears of
exploitation of birthmothers and of commodification of childbirth,
women, and children that are associated with surrogacy. It may for some
people be key to having the child of their dreams, but to others the
practice of surrogacy seems uncomfortably close to human trafficking
and baby selling.
1. Commodification of Intimate Relationships, of Birthmothers, and of
Children
A couple of stories are sufficient to illustrate the commodification
concern. A California surrogacy attorney tells of a man who came to
California to use surrogate services but wanted to hire six birthmothers,
and create six babies, so that after the births he could pick out two of
them. 94 When asked what he proposed for the other newborns, he told
the agency it could sell them. 95
The agency declined the would-be-clients request. 96 But the story
nonetheless illustrates an attitude of entitlement to the perfect baby,
allowing the would-be parent to pick and choose. This is obviously a
dangerous attitude for parents-to-be to adopt, at least until we arrive in
the era where science allows parents to select genetic traits before
embryos are implanted. The story also reflects the perspective that a
person with money is entitled to buy whatever he wants and to satisfy
himself in any way, without regard for consequences to others.
Another illustration of the same phenomenon occurred recently when
an Australian couple hired a birthmother in Thailand who delivered

94. Lewin, supra note 25.

95. Id.
96. Id. In a separate incident, a Japanese man recently fathered a dozen babies with different paid
birthmothers in Bangkok; the babies were born just weeks and months apart. Fuller, supra note 63,
at A12.

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twins, a boy and a girl. 97 The boy had Down syndrome but his twin
sister did not, so the couple who had hired the birthmother decided to
leave behind the boy, returning to Australia only with his twin sister.98
The couple had asked the birthmother to have a selective abortion of the
boy in the sixth month of pregnancy, but the birthmother had refused on
religious grounds. 99 She now has custody of the abandoned baby and is
raising him as her own. 100 The baby needs a heart operation, and people
in Australia, ashamed of the actions of their countrymen, have raised
hundreds of thousands of dollars to help with his care. 101
The Australian couple also has never paid the full fee that was agreed
upon to the birthmother. 102 In fact, the father has asked the agency to
refund part of his fee, because no parent wants a son with a
disability. 103 The story has also brought to light another potential
problem: Investigation has revealed that the father was convicted and
imprisoned for twenty-two counts of sexual abuse in the 1990s. 104
These stories suggest an attitude that if you have money you can buy
anything, including a perfect baby and a birthmother to produce it for
you. You can achieve these priceless contributions to your life, while
avoiding responsibility if things go wrong.
2. Exploitation or Freedom of Choice?
Another serious problem is raised by charges of exploitation of the
birthmothers. Whether this is a legitimate attack on surrogacy is much
debated. After all, we do believe in freedom of contract, and a surrogacy
contract represents an explicit agreement between the intended parents
and the birthmother-to-be. Persons who enter into agreements to serve as
birthmothers for a couple are usually people in financial constraints, or
people who do not have the option of another well-paying job. 105
97. Lewin, supra note 25.
98. See Fuller, supra note 63, at A12.
99. Juarawee Kittsilpa, Thai Surrogate Says Unaware Twin Had Down Syndrome Until Late in
Pregnancy, REUTERS UK EDITION (Aug. 3, 2014, 4:57 PM), http://uk.reuters.com/article/2014/08/
03/us-thailand-surrogacy-idUKKBN0G30KT20140803.
100. Id.
101. Fuller, supra note 63, at A12; Kittsilpa, supra note 99.
102. Kittsilpa, supra note 99.
103. Fuller, supra note 63.
104. Id.
105. See, e.g., Mohapatra supra note 88, at 195, discussing surrogacy in India ([T]he payments
that surrogates receive for carrying a baby often equals four or five times their annual household
income . . . the sum is significant in the lives of these surrogates. Surrogates state that the income
allows them to provide education for their children or to purchase a home.); Pande, supra note 90,

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Serving as a birthmother may be the most profitable job available, or the

job that the woman prefers. Birthing is also one of a very few jobs that
are available only to women. Should legislators take that option away
from them? Should not women be permitted to use their bodies any way
they want?
These arguments resemble arguments often made for legalizing
commercial sex (prostitution), another job that is primarily for
women. 106 Many believe commercial sex should be legal, as long as
women are not coerced to become sex workers. Should there be freedom
of choice, or is state regulation protecting the women against their own
choice appropriate when the subject is paid sex? Like surrogacy,
commercial sex is legal and regulated in some jurisdictions, domestic
and foreign, but it is forbidden in many others. 107 Both commercial sex
and surrogacy can be called voluntary on the part of the participating
women; they are jobs they have agreed to and are their means of
livelihood. When an intelligent woman consents to such a relationship,
why should she be unable to bind herself by her promise because others
feel that the arrangement exploits her?
But surrogacy and commercial sex are not the only contexts in which
womens promises to perform are not legally enforceable until
performance has taken place. In other contexts as well, persons are
protected from binding promises concerning intimate subjectslike a
promise to have sex, a promise to marry, a promise to give up a child for
adoption, or even a promise to work for a person. So if surrogacy
promises were to be legal but not binding or judicially enforceable, it
would be only one of several subjects of extreme personal importance

at 974 (stating that the payments that surrogates receive are often four or five times as much as the
surrogates annual household income); CARNEY, supra note 88, at 139 ($5,000 is more than [the
Indian surrogate] would make in ten years of ordinary labor.); Insight: Outsourcing to Indian
Surrogate Mothers (CNN television broadcast Oct. 17, 2006) (interviewing an attorney who states
that in India a surrogate mother can earn ten times what her husband earns); Smerdon, supra note
12, at 32 (stating that the general payment to a gestational surrogate in the United States was
between $14,000 and $18,000).
106. Nancy Erbe, Prostitutes: Victims of Mens Exploitation and Abuse, 2 L. & INEQUALITY 609,
62425 (1984); Erin Fuchs, 7 Reasons Why America Should Legalize Prostitution, BUS. INSIDER
(Nov. 13, 2013, 1:03 PM), http://www.businessinsider.com/why-america-should-legalizeprostitution-2013-11; Reihan Salam, Its Time for Legalized Prostitution, SLATE (July 31, 2014),
http://www.slate.com/articles/news_and_politics/politics/2014/07/legalized_prostitution_there_s_no
_way_to_end_demand_for_sex_work_so_why.html.
107. Prostitution is legal in eight counties in Nevada, although only in licensed brothels. NEV.
REV. STAT. ANN. 201.354 (West, Westlaw through End of 28th Special Session 2014).
In Sweden, the customer of the sex worker is a criminal, but the sex worker is not. Prabha
Kotiswaran, Do Feminists Need an Economic Sociology of Law?, 40 J.L. & SOCY 115, 129 (2013).

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that take that approach. Commercial contract law does not necessarily
apply to intimate activities, and a possible objection to surrogacy is that
it inserts contract into what has traditionally been an intimate realm.
A more concrete objection is that surrogacy does have an exploitative
aspect that is difficult to overlook, even with apparent consent by the
birthmother. Undeniably, the rich are hiring the poor to bear their babies.
The divide between the intended parents and the birthmother is usually
very wide, and the division is based on money, class, and often race.
After all, why have infertile couples, gay and straight, changed so
thoroughly from traditional to gestational surrogacy, when the former
variety is easier and does not involve the additional time and expense of
obtaining a donors egg? Not only does gestational surrogacy require an
additional female participant, but it also requires in vitro fertilization
(IVF), whereas artificial insemination usually suffices for traditional
surrogacy. IVF has a significantly lower success rate and is considerably
more expensive and risky than artificial insemination. 108 Why have so
many people nonetheless opted to erase the genetic tie between the
birthmother and the infant?
One reason is that a birthmother with no genetic tie might be thought
to have a lesser claim to custody. Indeed, the enforcement approach that
the California courts adopted for gestational surrogacy has not been
carried over to the traditional variety. 109 Other jurisdictions disagree with
that distinction. 110 In many places, the law is still developing.
Gestational surrogacy also widens the divide between the intended
parents and the birthmother, allowing men to use women of other races
to carry their children even when they are unwilling to have a biracial
child. More generally, some intended parents may prefer gestational
surrogacy because they do not want the genes of the woman they would
hire as a birthmother to constitute half of the babys genetic material.
With gestational surrogacy, they can obtain an egg from a person who
would never consent to be paid as a birthmother (or if she did, she would
demand far more than the going rate). Egg donors are sought in places
108. Differences Between Artificial Insemination and In Vitro Fertilisation, INSTITUTO
BERNABEU, http://www.institutobernabeu.com/foro/en/2011/12/14/differences-between-artificialinsemination-and-in-vitro-fertilisation/ (last visited Nov. 17, 2014); Fertility Treatment: Artificial
Insemination (IUI), BABY CENTER, http://www.babycenter.com/0_fertility-treatment-artificialinsemination-iui_4092.bc (last visited Nov. 17, 2014); Infertility and In Vitro Fertilization, WEB
MD, www.webmd.com/infertility-and-reproduction\guide\in-vitro-fertilization (last visited Nov. 17,
2014); Infertility and Artificial Insemination, WEB MD, www.webmd.com/infertility-andreproduction\guide\artificial-insemination (last visited Nov. 17, 2014).
109. See generally In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893 (Cal. Ct. App. 1994).
110. See, e.g., A.G.R. v. D.R.H., 2009 N.J. Super. Unpub. LEXIS 3250 (Ch. Div. Dec. 23, 2009).

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like college campuses, where smart, well-to-do, and privileged female

students may want to make some extra money by donating their eggs. 111
Intelligent and athletic blue-eyed blondes are heavily in demand. 112 But
when a woman is bearing your child but not providing the genetic
material, you can be less fussy about her attributes and accordingly pay
less for her services.
In fact, it is not uncommon for the intended parents to pay far more to
the egg donor than to the surrogate. 113 Donating an egg is a complex
procedure, and it is not entirely risk-free. An egg donor must take
fertility drugs and undergo an egg retrieval procedure. In that way, she
undertakes much more than a sperm donor does, and she is better
compensated. But her services are far less onerous overall than those of
the birthmother.
The imbalance of power between the birthmother and the intended
parents inherent in surrogacy arrangements is exacerbated when U.S.
citizens use international surrogacy. It is now common for frozen
embryos to be sent to foreign countries so that genetically unrelated
birthmothers can carry and deliver a baby. The baby is usually turned
over to the intended parents through an agency who arranged the
contract. Questions about what is voluntary and the limits of freedom
of contract become even more difficult when birthmothers are offered
several times their annual household income for bearing a child.
Does the fact that the birthmother is offered so much money make the
contract involuntary, because the monetary incentive is too great, or does
it just show she has her own reasons for offering her services? Should
111. Diversity Fertility Services, LLC, a company that finds egg donors and matches them with
intended parents, states that egg donors with certain traits can receive higher compensation. The
traits include: documented superior intelligence and academics (tested IQ over 138, Ivy League
student or graduate, very high standardized test scores); exceptional beauty with specific
physical features and height (typically over 57); or above-average athletic ability. DIVERSITY
FERTILITY SERVICES, LLC, https://dfsdonors.com/EggDonors.html (last visited Sept. 23, 2014); see
also Melinda Henneberger, The Ultimate Easter Egg Hunt: Ivy League Couple Seeks Donor with
Highest Scores, WASH. POST (Mar. 21, 2013), http://www.washingtonpost.com/blogs/she-thepeople/wp/2013/03/21/the-ultimate-easter-egg-hunt-ivy-league-couple-seeks-donor-with-highestpercentile-scores/; Gina Kolata, $50,000 Offered to Tall, Smart Egg Donor, N.Y. TIMES, Mar. 3,
1999, at A10 (discussing an ad in a few top college newspapers where a couple offered $50,000 to
an egg donor who fit their specific criteria, which included a tall, athletic woman with high
academic achievement); Kevin Su, Not by the Dozen, YALE HERALD (Feb. 21, 2014),
http://yaleherald.com/news-and-features/not-by-the-dozen/.
112. See, e.g., Su, supra note 111.
113. See, e.g., Smerdon, supra note 12, at 32 (writing in 2008 that the general payment to a
gestational surrogate in the United States was between $14,000 and $18,000, while donor eggs in
the U.S. can sell for as much as $50,000) (citing JAN SWASTHYA ABHIYAN, NATL COORDINATION
COMM., NEW TECHNOLOGIES IN PUBLIC HEALTH: WHO PAYS AND WHO BENEFITS? 6566 (2007)).

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we worry about Americans being exploitive by hiring a birthmother for a

sum that is minimal for them? Should we worry that the women hired
internationally have fewer protections than those in the United States?
Both internationally and domestically, some women who become
birthmothers for hire are reluctant. They may be pressured by husbands,
for example. But the pressure may be even more prevalent and extreme
in other cultures. One account of an Indian village suggests that young
women in the village generally were expected to improve the standard of
living by becoming birthmothers for hire. 114 So in individual cases, there
are real questions whether the consent given should be deemed
voluntary. Other paid birthmothers, however, may be enthusiastic about
the ability to contribute vastly to their household earnings. 115
International gestational surrogacy has not only widened the poverty
divide between the contracting parties, it also has greatly increased the
use of nonwhites to produce children for Caucasians. Because
gestational surrogacy allows intended parents to settle for a birthmother
of a different race, for example, or one they consider genetically their
inferior, it can be even more exploitative and demeaning to the
birthmothers who are hired.
A lack of respect shown to the birthmother is another indication that
surrogacy can be degrading to the birthmothers involved and that they
are in no way treated as equal contracting partners. For example, the
Thai woman who was left with the Down syndrome baby was not
informed when the agency and the contracting couple learned that one of
the children she was carrying had Down syndrome. 116 They informed
her only months later, when they wanted her to have a selective
abortion. 117 Moreover, the living arrangements that are forced upon
contracting birthmothers in many foreign destinations are disrespectful
of their independence and the importance of their own lives and families.
Indeed, the whole notion of automatically enforcing surrogacy contracts
in favor of contracting intended parents belittles the role of the
birthmother, her importance to the babys development, and the
relationship that grows between birthmother and infant during the course
of pregnancy.
Except to supporters of absolute freedom of contract for all things,
114. Mohapatra, supra note 88, at 19495 (2012); see also Smerdon, supra note 12, at 51.
115. On differences between coercion, exploitation, and inducement, albeit in a different context,
see I. Glenn Cohen, Regulating the Organ Market: Normative Foundations for Market Regulation,
77 LAW & CONTEMP. PROBS. 101, 10509 (2014).
116. Kittsilpa, supra note 99.
117. Id.

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these facts might suggest exploitation by nationality and gender, as well

as by wealth, class, and race. They are sufficient to raise concern
whether surrogacy should be enforced and also whether governments
should underwrite and promote the surrogacy industry.
C. Do We Need a Uniform National Surrogacy Law?
A different interpretation of the search for connections between
Windsor and surrogacy suggests a search for uniformity concerning U.S.
surrogacy laws, or perhaps even for constitutional protection of access to
surrogacy, just as there is evolving constitutional protection for same-sex
marriage. People with little understanding of our federal system often
criticize U.S. surrogacy as involving a mishmash of laws, differing
state by state and utterly unclear in some instances.118 But surrogacy is a
matter of state law, whether that law is announced by the state
legislature or the state courts or instead remains totally undeveloped.
Possibly Congress could create uniform legislation on surrogacy, 119
although there is little disposition to do so. 120 In any case, the Supreme
Court will not take on the role of giving it constitutional protection.
I take as a given that a constitutional right to same-sex marriage will
soon be recognized. Windsor did not have that effect; it only protected
marriages that were legal in the states where they took place. 121 But
Windsor is widely considered a precursor to a simpler holding that the
right to marry a same-sex partner is protected by the United States
Constitution and states cannot forbid it. 122 That is not the law today, but
that ruling will come.
One reason a national solution must prevail on the issue of same-sex

118. Prez, supra note 9.

119. Hoke v. United States, 227 U.S. 308 (1913) (upholding the Mann Act, forbidding the
transportation across state lines of a woman for purpose of prostitution). But see United States v.
Morrison, 529 U.S. 598 (2000); Lopez v. United States, 514 U.S. 549 (1995).
120. No bills on the subject have been introduced since 1989. Indeed when Congress did take an
interest in legislating on the subject of surrogacy, its effort was to prohibit surrogacy, not to support
or facilitate it. See Commercialized Childbearing Act of 1989, H.R. 1188, 101st Cong.; AntiSurrogate Mother Act of 1989, H.R. 576, 101st Cong.; Surrogacy Arrangements Act of 1989, H.R.
275, 101st Cong.; Anti-Surrogate Mother Act of 1987, H.R. 3264, 100th Cong.; Surrogacy
Arrangements Act of 1987, H.R. 2433, 100th Cong.; see also FIELD, supra note 13, at 15556.
121. United States v. Windsor, __ U.S. __, 133 S. Ct. 2675 (2013).
122. See, e.g., Adam Liptak, A Steady Path to Supreme Court as Gay Marriage Gains Momentum
in States, N.Y. TIMES, Feb. 15, 2014, at A1; Michael J. Klarman, Op-Ed., Better Late than Never:
Expect a High Court OK on Marriage Equality Soon, L.A. TIMES (Sept. 20, 2014, 5:00 AM),
http://www.latimes.com/opinion/op-ed/la-oe-klarman-gay-marriage-supreme-court-20140921story.html.

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marriage is the difficulty of administering a federal system in which

persons are legally married in some states but not in others. If a couple
separates in a state where their union was unrecognized, must they
divorce? If they do not divorce, will they be bigamists when they enter a
marriage that is legal and recognized? These are just a few of the many
problems that can arise if ones status differs by state. The United States
had similar problems when interracial marriage was forbidden in some
jurisdictions but not in others; interracial couples would leave home in
order to marry legally out of state only to be arrested and imprisoned
upon their return home. 123
A uniform rule concerning gay marriage is necessary because states
need not recognize marriages that are inconsistent with state public
policy. 124 The same need for uniformity does not exist in relation to
surrogacy, because a parent-child relationship established and
recognized in one state must be respected in other states under the U.S.
Constitutions Full Faith and Credit Clause.125 In that way, uniformity of
recognition of parent-child relationships is assured even while states
pursue different surrogacy policies.
D. Could Surrogacy Access Be Protected by the United States
Constitution?
Somewhat to my surprise, a few scholars have suggested that
surrogacy, like gay marriage, should be constitutionally protected. They
argue that a right of access to surrogacy is a fundamental right protected
by the United States Constitution. 126 There obviously is a very legitimate
desire on the part of gay couples (married or not) to have children; that
desire can be very central to what the couple wants to do with their lives.
Bans on surrogacy deny that experience even though the solution is
technically available and medically safe. Looked at solely from the point
of view of those with a need for surrogacy, an argument for
123. See, e.g., Kinney v. Commonwealth, 71 Va. (30 Gratt.) 858, 869 (Va. 1878) (upholding the
conviction of a man for getting married to a woman of another race in another state and returning to
Virginia); Ex parte Kinney, 14 F. Cas. 602 (C.C.E.D. Va. 1879) (habeas denied).
124. RESTATEMENT (SECOND) OF CONFLICT OF LAWS 283(2) (1971 & Supp. 2014).
125. U.S. CONST. art. IV, 1.
126. See JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE
TECHNOLOGIES 3240 (1993); Nicolas, supra note 30, at 127982. One case also holds
unconstitutional one aspect of state interference with a consensual, undisputed surrogacy
arrangement. In J.R. v. Utah, 261 F. Supp. 2d 1268 (D. Utah 2002), the district court held
unconstitutional Utahs requirement that the birthmother be listed on the birth certificate rather than
the intended parents. The context was a surrogacy arrangement involving no dispute between the
parties, so except for the birth certificate, there were no enforcement issues.

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constitutional protection might have some force: bans and even restraints
on surrogacy interfere with some persons rights to procreate, a right that
has achieved constitutional protection. As part of his argument that
access to surrogacy is constitutionally protected, Professor Nicolas also
characterizes surrogacy as part of our historical tradition. 127 For this
argument, he relies on the fact that surrogacy has been largely
unregulated over the ages, with prohibitions on the practice emerging
only in the 1980s. 128
With all due respect, I find the argument that surrogacy access is a
constitutional right to be extremely weak. True, it can be characterized
as part of a right to procreate, but to assume that it will thereby partake
of constitutional protection is to ignore the Supreme Courts
constitutional distinctions, which make clear that a personal right to do
something does not necessarily carry over to a right to enlist the
assistance of another. The Supreme Courts right to die cases are
illustrative. The Supreme Court has strongly suggested that there is a
constitutional right to refuse medical treatment. 129 An individual is even
entitled to have life-saving equipment disconnected at his or her
option. 130 Nonetheless, the Court has denied that there exists a
constitutional right to any other assistance in ending ones life, whether
by physicians or by individuals. 131 The U.S. Constitution remains neutral
on the issue whether to allow physician-assisted suicide; the question is
a policy issue, left to resolution by the states.132
The argument Professor Nicolas makes that surrogacy is a
fundamental right because it has not been regulated or prohibited
historically 133 is even less convincing. To equate it to an ingrained
American practice like marriage is indeed a stretch. Surrogacy went
unregulated until the 1980s largely because the practice had not come to
widespread public attention. One could just as easily say that sadomasochism (traditionally unregulated) has constitutional protection
today. Similarly, domestic violence was ignored or even condoned by
law until the last few decades. It was not punished or even forbidden;
instead the husband had control of his household. That history did not
127. Nicolas, supra note 30, at 128294.
128. Id.
129. Cruzan v. Dir., Mo. Dept. Health, 497 U.S. 261, 27074 (1990).
130. Id.
131. See generally Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793
(1997).
132. See Gonzales v. Oregon, 546 U.S. 243, 26975 (2006).
133. Nicolas, supra note 30, at 128294.

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mean that domestic violence was constitutionally protected.

Of course, this is not in any way to equate surrogacy with those
practices, but simply to say that the fact that a practice has not been the
subject of legal regulation or ban does not mean that it is a fundamental
right under the Due Process Clause or that the Constitution insulates it
from legal regulation or ban.
One reason that the affirmative argument for constitutional protection
of access to surrogacy is so weak is because surrogacy involves using
another person or persons, albeit with their consent. Libertarians might
argue that permitting surrogacy is constitutionally required on grounds
of freedom of contract and womens rights to do as they want with their
bodies. The many states still criminalizing commercial sex, to which
these same arguments apply, demonstrate that these arguments cannot
carry the day. Why would the Supreme Court insulate a practice from
legislative revision by calling it a fundamental unenumerated
constitutional right, when the practice is arguably exploitative? Why
would it create an unenumerated right commercializing areas of intimate
personal activity that have traditionally and at common law been
insulated from commercial exchange? Like arguments about commercial
sex, there are legitimate policy arguments on both sides of the surrogacy
issue. Accordingly, it is appropriately resolved in the states rather than at
a constitutional level.
The United States Supreme Court, if faced with the issue, would hold
that the Constitution allows states to choose to ban surrogacy, even when
it does not allow them to ban same-sex marriage. Indeed at this time in
our history it seems much more likely that the Constitution would be
held to prohibit surrogacy (and perhaps commercial sex, human
trafficking, and baby-selling) than it would be held to protect those
practices against contrary state regulation.
One might ask how surrogacy (or commercial sex) could be
constitutionally forbidden when the woman involved has given her
consent. A court might deem the consent involuntary, but the better
analysis for such a holding would be to require continuing consent, so
that the birthmother (or sex worker) could withdraw her consent at any
time prior to fulfillment of the contract. That is the approach applied to
promises to give up a child for adoption, to promises to marry, and to
promises to perform a job. Those promises are not subject to specific
enforcement until the adoption/marriage/job completion takes place. For
those topics, any consent given in a contract can be withdrawn by the
performing party. Once withdrawn, consent no longer exists.
Indeed it is familiar that this dynamic controls the legality of sexual
relationships. A person may consent to sexual intercourse, but if she

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changes her mind in the middle of the act, her change of mind must be
respected. At that point, no means no and refusing to accept her change
of heart constitutes rape.
If a continuing consent were deemed necessary for surrogacy, as for
other intimate acts, once consent was withdrawn enforcement of the
contract could be characterized as involuntary servitude, in violation
of the Thirteenth Amendment of the U.S. Constitution. Specific
performance of the contract might also violate the birthmothers rights to
bodily integrity and liberty, protected by the Due Process Clause of the
Fourteenth Amendment.
Of course, I am not seriously contending that it is unconstitutional for
states to allow surrogacy (or commercial sex). My basic point is that
access to surrogacy is neither constitutionally forbidden nor
constitutionally required, although it is possible to formulate arguments
on both sides of the question. Instead of any constitutional ruling
emanating from the federal courts, it is much more likely that the
practice of surrogacy will continue to be regulated by the states, which
sometimes will mean it is not regulated at all.
There will continue, then, to be sharply differing surrogacy laws, but
it is not necessarily disadvantageous to allow each state to pursue the
policy it deems best. One advantage of differing laws is that the states
and the public can learn from the implementation of different systems
and will eventually have a better basis, including an empirical basis, for
forming their surrogacy policy.
So in the United States, surrogacy is a matter of state policy, and it is
likely to stay that way for a long time. It can be fostered in some places
and in others it can be impeded by surrogacy laws and other state
regulations. There is no federal compulsion for states to allow
surrogacyfor gay couples or for anyone else. 134
Some states, of course, like Florida, Utah, and Texas, as noted above,
allow surrogacy to opposite-sex couples but not gay couples, and those
states require also that intended parents be married. These regulations,
like other discriminations against gays, raise much more serious
constitutional issues than those denying access to surrogacy more
generally. Rules denying gay couples the same access to adoption or
foster parenting as other would-be parents are similarly vulnerable to
upcoming Equal Protection challenge. Such discriminatory rules could
be held unconstitutional if the Supreme Court (in its gay marriage

134. See generally Radhika Rao, Equal Liberty: Assisted Reproductive Technology and
Reproductive Equality, 76 GEO. WASH. L. REV. 1457, 147475 (2008).

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decisions or elsewhere) finds that discrimination accordingly to sexual

orientation, like discrimination by race, religion, or gender, violates the
Equal Protection clause.
Access to surrogacy for same-sex couples would be vastly increased
in the United States by a successful attack on the laws allowing
surrogacy to some people but not to gay men. That course of challenging
discrimination as a violation of Equal Protection is likely to be
productive much sooner than the attempt to construct a Due Process
entitlement of access to surrogacy which is under discussion here.
But even after the Constitution compels equal treatment of same- and
opposite-sex couples, each state will have to decide what it considers the
best surrogacy policy to adopt. State lawmakerslegislative,
executive, or judicialwill need to assess the pros and cons of
surrogacy. Washington State has recently gone through a long process of
considering whether to replace its ban on surrogacy, a process described
in detail in Professor Prices informative article. 135 Legislative sponsors
have tried but failed to enact a policy affirmatively allowing paid
surrogacy and surrogacy agencies within its borders, as well as
automatically enforcing surrogacy contracts despite a birthmothers
change of heart. 136 Other states also are considering a variety of
surrogacy laws. 137
E. The Range of Options for State Laws
Even apart from Windsor and gay marriage, each state will eventually
be faced with a need to make decisions about that states surrogacy
policy. Will it endorse surrogacy, or recognize and regulate it without
enforcing it, or will it try to make it illegal?
It is unrealistic to think that full prohibition of surrogacy could be
accomplished even if that were the will of a state or a national
government. Instead, attempts to forbid surrogacy are likely to result
either in travel for surrogacy or in a robust black market. Those men
who are desperate for a genetically connected baby, now aware of the
potential for surrogacy, do not give up so easily. The experience of
China, where surrogacy is illegal, is illustrative.

135. Terry J. Price, The Future of Compensated Surrogacy in Washington State: Anytime Soon?,
89 WASH. L. REV. 1311, 132636 (2014).
136. Id.
137. See discussion about pending state laws in Lewin, supra note 63, at A1 (including a
discussion of a legislative hearing in Kansas in which there was proposed legislation to impose a
fine or even imprisonment on those entering into a surrogacy contract).

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The Chinese interest in surrogacy may be affected by a traditional and

cultural emphasis on the necessity of having children, which makes it
especially difficult for an infertile couple. 138 Moreover, some have used
surrogacy in evading the one-child-only policy that China enforced in
some areas of the country until recently. 139 Couples who have lost their
only child but are too old to reproduce are also attracted to surrogacy. 140
Surrogacy is not legal in China, 141 but many Chinese who want it
have not been willing to use foreigners, either as egg donors or as
birthmothers. A man who works in a surrogacy agency in China
attributed this attitude to a belief that Chinese are superior, even when
only pregnancy and childbirth are involved. 142 In any case, a very
expensive black market in surrogacy is booming in China, servicing
Chinese couples who wish to use surrogacy, and charging them much
more even than is typical in the United States. 143
The lesson is that once the public knows that surrogacy can be
accomplished as a scientific matter, it will be practiced, legally or
illegally. The desire to have a genetically related child is sufficiently
strong that a vigorous black market will appear if no other market is
available. 144
IV.

SHOULD STATES INCREASE PROTECTION OF

SURROGACY?

If surrogacy were actually fully illegal and the ban could be

successfully enforced, couples like those allowed to marry in Windsor
and many other couples would have no opportunity to have a genetically
related child. In a situation like that, an appeal to open up surrogacy
somewhere in the United States, subjecting it to regulation but not ban,
might be compelling. The plight of gay male couples (and others who

138. Johnson & Li, supra note 71, at A4.

139. Alexandra Harney, Chinese Look Overseas for Surrogates, N.Y. TIMES (Sept. 24, 2013),
http://www.nytimes.com/2013/09/24/business/global/chinese-look-overseas-for-surrogates.html.
140. Johnson & Li, supra note 71, at A4.
141. Harney, supra note 139.
142. Johnson & Li, supra note 71, at A4.
143. Id.
144. Others have argued, however, that a ban on surrogacy is preferable to regulation and claim
that laws regulating surrogacy end up promoting it. One point is that a ban on surrogacy would at
least reduce the number of these arrangements. Less persuasive is the argument that a ban would
result in greater protection for birthmothers. Smerdon, supra note 12, at 3940; JANICE G.
RAYMOND, WOMEN AS WOMBS: REPRODUCTIVE TECHNOLOGIES AND THE BATTLE OVER WOMENS
FREEDOM 20708 (1993).

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want a genetically-related child and cannot accomplish that on their

own) would militate against full prohibition of surrogacy.
But clearly, full prohibition is not the current situation. Surrogacy is
entirely available, even to persons who live in states that criminalize it.
Both in the United States and abroad, there are governments that endorse
surrogacy and attempt to attract surrogacy clients. And surrogacy is also
available in many states and countries that do not openly promote it but
that allow it to exist. In short, people who have money and who want to
use surrogacy to create a child can do so.
When a few states are already affirmatively friendly to surrogacy,
treating it like an ordinary business to be promoted and encouraged, the
case for other states joining their number is sharply reduced. States may
be legitimately reluctant to allow commerce and contract to govern
conception, childbirth, and custody, areas otherwise insulated from
monetary transactions by adoption and baby-selling laws. There may be
realistic fears of exploitation of women. These reasons may cause states
to keep surrogacy agencies and even private surrogacy transactions
outside of their borders, even while inevitably allowing their citizens to
make use of surrogacy services that are available elsewhere. That policy
might appear best, even though it can add to the expense of an already
expensive transaction to have to enter a surrogacy arrangement away
from home.
What further legalization would accomplish is to make surrogacy
more convenient and easier to achieve, to make it more normal. Those
goals may be positive in relation to gay marriage, but the costs of
surrogacy and its degrading aspects should also be considered before the
practice is deliberately encouraged and spread. It does not seem unduly
burdensome to require would-be parents in Washington State to travel to
Oregon or California to enter a contract to obtain a child. 145 The amount
of trouble that causes the intended parents is miniscule in comparison to
what any birthmother experiences in gestating and delivering the child.
CONCLUSION
Windsor is only tangentially relevant to surrogacy, if at all, and does
not state a case for taking any particular position on surrogacy. The
145. Even rights that are recognized as constitutionally required can sometimes be burdened, with
the Supreme Court upholding a right of access but allowing states to discourage exercise of the
right. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992) (abortion);
Cruzan v. Dir., Mo. Dept. Health, 497 U.S. 261, 280 (1990) (rights to refuse and to discontinue
medical treatment); Planned Parenthood Se., Inc. v. Strange, No. 2:13cv405MHT, 2014 WL
3809403, at *1 (M.D. Ala. Aug. 14, 2014) (abortion).

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issues are entirely different. Nor does Windsor suggest that access to
surrogacy will be subject to national rules, statutory or constitutional.
Even apart from Windsor and gay marriage, each state will eventually be
faced with a need to make decisions about that states surrogacy policy.
Surrogacy will remain broadly available to those who have money,
whether or not more states decide actively to promote it.