Surrogacy in the U.s.: An overview Courtney G. Joslin UC Davis School of Law cgjoslin@ucdavis.edu

1980s – 1990s: First wave Jurisdictions banning (some types of) surrogacy: Arizona (1989) Indiana (1988) (banning gestational and genetic surrogacy) Kentucky (1988) (banning compensated genetic surrogacy) Louisiana (1987) (banning compensated genetic) Amended 2016 Michigan (1988) (civil ban + potential criminal penalties) Nebraska (1988) (banning compensated agreements) New York (1992) (civil ban + civil & criminal penalties) North Dakota (1989) (banning genetic surrogacy) Utah (1989) (civil ban + criminal penalties) Repealed 2008 Washington (1989) (banning compensated only) Repealed 2018 District of Columbia (1992) Repealed 2017 * Year in parentheses reflects the year in which the legislation was enacted. © 2019 Courtney G. Joslin

1980s – 1990s: Statutory bans Civil prohibition: “No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.” Ariz. Rev. Stat. Ann. § 25-218(A) Rendering agreement void: “A surrogate parentage contract is void and unenforceable as contrary to public policy.” Mich. Comp. Laws § 722.855 © 2019 Courtney G. Joslin

1980s – 1990s: Statutory bans Civil penalties: Criminal penalties: “Any other person or entity who … assists in the formation of a surrogate parenting contract for … compensation ... shall be subject to a civil penalty not to exceed ten thousand dollars.” NY Dom. Rel. Law § 123 (b) Criminal penalties: “A participating party … who knowingly enters into a surrogate parentage contract for compensation is guilty of a misdemeanor punishable by a fine of not more than $10,000.00 or imprisonment for not more than 1 year, or both.” Mich. Comp. Laws § 722.859(2) © 2019 Courtney G. Joslin

1980s – 1990s: Concerns Potential exploitation of women, especially poor women and women of color. Concern that reinforced stereotyped views of women as defined by their connection to reproduction. Potential harm to children and society. © 2019 Courtney G. Joslin

2000s: Second wave Statutes (17) permitting and regulating surrogacy: Arkansas (1985) Oklahoma (2019) California (2012) Texas (2001) Delaware (2013) Utah (2008) Florida (1988; 1993) Vermont (2018) Illinois (2005) Virginia (1991, amended 2019) Louisiana (2016) Washington (2018) Maine (2015) D.C. (2017) Nevada (2013) New Hampshire (2015) New Jersey (2018) © 2019 Courtney G. Joslin

2000s: Parentage “[O]n birth of a child conceived by assisted reproduction under a [compliant] gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the child.” Wash. Rev. Code Ann. § 26.26A.740(1) © 2019 Courtney G. Joslin

2000s: Pre-birth orders “[B]efore, on or after the birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, a party to the agreement may commence a proceeding … for an order … ordering that parental rights and duties vest immediately upon the birth of the child….” Wash. Rev. Code Ann. § 26.26A.740(1) © 2019 Courtney G. Joslin

2000s: New sub-trends More inclusive rules regarding intended parents Rules that better protect the interests of people acting as surrogates Regulation of surrogacy brokers Access to information about gamete providers Genetic (aka traditional) vs. gestational surrogacy © 2019 Courtney G. Joslin

2000s: New sub-trends More inclusive rules regarding intended parents Rules that better protect the interests of people acting as surrogates Regulation of surrogacy brokers Access to information about gamete providers Genetic (aka traditional) vs. gestational surrogacy © 2019 Courtney G. Joslin

Intended parents Older statutes: “The intended parents must be married to each other." Tex. Fam. Code Ann. § 160.754(b) (enacted 2001) © 2019 Courtney G. Joslin

Intended parents Newer statutes: “‘Intended parent’ means an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction.” Wash. Rev. Code § 26.26A.010(13) (enacted 2018) © 2019 Courtney G. Joslin

2000s: New sub-trends More inclusive rules regarding intended parents Rules that better protect the interests of persons acting as surrogates Regulation of surrogacy brokers Access to information about gamete providers Genetic (aka traditional) vs. gestational surrogacy © 2019 Courtney G. Joslin

Legal Representation “(7) The woman acting as a surrogate and the intended parent or parents must have independent legal representation throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement, and each counsel must be identified in the surrogacy agreement. (8) The intended parent or parents must pay for independent legal representation for the woman acting as a surrogate.” Wash. Rev. Code Ann. § 26.26A.710 (enacted 2018) © 2019 Courtney G. Joslin

Bodily and decision-making autonomy Older statutes: Permits enforcement of agreements that require the person acting as a surrogate: to “undergo all medical exams, treatments, and fetal monitoring procedures that the physician recommended for the success of the pregnancy” to “abstain from any activities that the intended parent or parents or the physician reasonably believes to be harmful to the pregnancy.” 750 Ill. Comp. Stat. 47/25(c) (enacted 2004) © 2019 Courtney G. Joslin

Bodily and decision-making autonomy of the person acting as a surrogate Newer Statutes: “The agreement must permit the woman acting as a surrogate to make all health and welfare decisions regarding herself and her pregnancy and, notwithstanding any other provisions in this chapter, provisions in the agreement to the contrary are void and unenforceable. This chapter does not diminish the right of the woman acting as a surrogate to terminate her pregnancy.” Wash. Rev. Code § 26.26A.715(1)(g) (enacted 2018) © 2019 Courtney G. Joslin

Regulation of surrogacy brokers Requires funds to be deposited into a licensed escrow account; Prohibits a broker entity from being owned or managed by a lawyer representing a party or a health care provider providing services to a party; Prohibits payment of fees to a broker from an attorney representing a party or from a health care provider involved in the arrangement. Wash. Rev. Code § 19.380.010 (enacted 2018) © 2019 Courtney G. Joslin

Information about gamete providers (1) [On request of the child at age 18], [the collecting] gamete bank … shall make a good faith effort to provide the child with identifying information of the donor who provided the gametes, unless the donor signed and did not withdraw a declaration [of non-identity release] … (2) … [On request of the child at age 18] or, if the child is a minor, by a parent or guardian of the child, [the collecting] gamete bank … shall make a good faith effort to provide the child or … the parent or guardian … access to nonidentifying medical history of the donor. Wash. Rev. Code § 26.26A.820 (enacted 2018) © 2019 Courtney G. Joslin

2000s: New sub-trends More inclusive rules regarding intended parents Rules that better protect the interests of persons acting as surrogates Regulation of surrogacy brokers Access to information about gamete providers © 2019 Courtney G. Joslin

2000s: New sub-trends More inclusive rules regarding intended parents Rules that better protect the interests of persons acting as surrogates Regulation of surrogacy brokers Access to information about gamete providers Gestational vs. genetic (aka traditional) surrogacy © 2019 Courtney G. Joslin

Gestational surrogacy: Arkansas (1985) Oklahoma (2019) California (2012) Texas (2001) Delaware (2013) Utah (2008) Florida (1988; 1993) Vermont (2018) Illinois (2005) Virginia (1991, amended 2019) Louisiana (2016) Washington (2018) Maine (2015) D.C. (2017) Nevada (2013) New Hampshire (2015) New Jersey (2018) © 2019 Courtney G. Joslin

Genetic Surrogacy Statutes that permit & regulate genetic surrogacy: Maine (2015) (family members only) Florida (1988; 1993; 2003) (different rules) Virginia (1991) (different rules) Vermont (2018) (family members only) Washington (2018) (different rules) DC (2017) (different rules) © 2019 Courtney G. Joslin

Surrogacy in the U.s.: An overview Courtney G. Joslin UC Davis School of Law cgjoslin@ucdavis.edu