Surrogacy laws differ from state to state

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Surrogacy laws differ from state to state

In the U.S.A., every state in the nation has its own laws regarding surrogacy.  In one state it may be legal, but cross another state line, and it may be a crime.

Tamar Lewin’s article in the New York Times, “Surrogates and Couples Face a Maze of Laws, State by State,” reviews a complicated topic.

Lewin writes, “While surrogacy is far more accepted in the United States than in most countries, and increasing rapidly (more than 2,000 babies will be born through it here this year), it remains, like abortion, a polarizing and charged issue.  She continues, “There is nothing resembling a national consensus on how to handle it and no federal law, leaving the states free to do as they wish.”

Lewin points out that there are a total of 17 states which legally allow surrogacy.  But with that said, all those states don’t follow the same protocol – each state is different with their views and restrictions.

“In 21 states, there is neither a law nor a published case regarding surrogacy, according to Diane Hinson, a Washington, D.C., lawyer who specializes in assisted reproduction. In five states, surrogacy contracts are void and unenforceable, and in Washington, D.C., where new legislation has been proposed, surrogacy carries criminal penalties.  Seven states have at least one court opinion upholding some form of surrogacy,” she writes.

And then there’s California.  It’s a haven for intended parents looking for a surrogate to help them build a family.

The reporter adds, “California has the most permissive law, allowing anyone to hire a woman to carry a baby and the birth certificate to carry the names of the intended parents. As a result, California has a booming surrogacy industry, attracting clients from around the world.”

Lewin also highlights surrogacy arrangements gone wrong.

She mentions a surrogate in Connecticut, Crystal Kelley, being offered $10,000 for an abortion, after a 5-month ultrasound discovered the fetus had health issues including heart defects, a cyst in the brain and a cleft palate.

Kelley flew to Michigan, “where surrogacy contracts are unenforceable,” had the baby and the child was adopted by another family.

As I’ve previsoulsy said, these types of surrogacy cases are not the norm.

Jennifer Lahl also appears in the article, the film creator of, “Breeders: A Subclass of Women?”

Lewin mentions one surrogate featured in the film: A Texan woman, Gail Robinson, who was a surrogate for her brother and his partner.

“In the course of the pregnancy, she had a serious falling-out with her brother and suffered life-threatening eclampsia.  Ms. Robinson, who had never had a child of her own, ended up seeking custody of the twin girls she carried and was declared a legal parent, along with the partner, despite her lack of genetic connection to the twins,” she writes.

Very interesting considering the fact that in 2011, reporter Ted Sherman covered this legal battle in an article entitled, “N.J. gay couple fight for custody of twin 5-year-old girls.”

The surrogate in this Texas case no longer has custody.  The biological father does and she has visitation rights, which I think she should never had received. She’s not the biological mother and she agreed to act as a Gestational Carrier for her brother and his partner.

Yes, I know, she nearly died and that is awful; however, I’m stunned that she had never given birth before the surrogate pregnancy and that’s an absolute must before being a surrogate.

Not only must a surrogate have given birth to at least one healthy child, but that child must live at home with her.

She nearly dies and she’s never done this before. I don’t care who you are: sister, cousin, best-friend – if you’ve never given birth I won’t be involved in the case.  While Lewin does highlight a positive surrogate story, she switches gears on how states are trying to find middle ground, comparable to Illinois.

Lewin reports, “The Illinois law requires medical and psychological screenings for all parties before a contract is signed and stipulates that surrogates be at least 21, have given birth at least once before, and be represented by an independent lawyer, paid for by the intended parents.”

I agree. While medical and psychological screenings are not part of the California surrogacy statute, I don’t know any attorney in this industry who works with surrogates who have not been medically and psychologically screened.

For couples looking to do surrogacy, you need to be careful who your attorney is and that they know the laws in the state where your surrogacy case will be applied – or if they don’t, they associate with someone who does. Most attorneys in California don’t have to know the laws in New Jersey, Idaho, Oklahoma, Florida, North Carolina, to name a few, but I do.

If you want to work in this business and do a good job, it’s just what you do.