On April 7th, Washington D.C.’s new surrogacy statute went into effect, making contracts for surrogacy both legal and enforceable, subject to certain minimum qualifications. D.C. now joins eight states that also fully recognize and enforce surrogacy contracts, but in the remaining states, legal hurdles abound. Before updating its policy, D.C. law prohibited surrogacy, and subjected all parties to surrogacy contracts to $10,000 in fines and a year of jail time. Several states, including New York and Michigan, continue to void all surrogacy contracts, and impose civil and criminal penalties for compensated surrogacy contracts. Many more states do not have laws that either ban or protect surrogacy, so enforceability and parental rights are often determined on a case-by-case basis in courts, leaving surrogates and intended parents in a state of legal uncertainty regarding their parental rights, obligations, and legal entitlement to compensation.
Surrogacy as Labor
Early debates and litigation revolved around traditional surrogacy, or the artificial insemination of a surrogate who had both a genetic and gestational connection to the child. With the advent of in vitro fertilization (IVF), gestational surrogacy became possible, in which a surrogate could carry a child genetically related to separate donors or the intended parents. These advances in reproductive technology meant the demand for commercial surrogates was on the rise. Different surrogacy organizations report prospective commercial surrogates can expect an average baseline pay of $30,000 – $35,000, though some experienced surrogates are able to earn significantly higher sums, and rightly so—if we conceive of pregnancy as 24/7 physical labor for nine months, baseline salaries of $30-35k average only about $5 an hour. Not only do surrogates have to endure the physical labor of pregnancy and childbirth, but they must also undergo extensive medical testing and preparation for the IVF process. While the trend seems to be toward the recognition of surrogacy agreements, several states, including New York, continue to criminalize them. On their face, surrogacy contracts appear like regular labor contracts—an agreement to compensate an individual for the services they perform—so why are some states unwilling to accept their validity?