Surrogacy Law in the United States: Do We Need More Regulation?

Last month, Maryland Attorney General Brian Frosh released an order stating that The Surrogacy Group, a Maryland-based law firm, must pay more than $2 million in damages to families and prospective parents they deceived and defrauded. Surrogacy is a method of Assisted Reproductive Technology in which prospective parents work with a gestational or traditional carrier, or surrogate, who will carry an intended pregnancy for them. In particular, The Surrogacy Group was charging prospective parents fees anywhere from $12,000 to $23,000 with additional costs to be put into escrow for medical payments and other expenses typically incurred during the surrogacy arrangements. However, instead of holding this money in escrow, Greg Blosser, The Surrogacy Group’s owner, defrauded the prospective parents by taking that money for his own personal use. The victims of Blosser’s fraud feel particularly burned by Blosser’s actions because The Surrogacy Group took advantage of them at a particularly vulnerable time in their lives—while trying to expand their families through Assisted Reproductive Technology. 

This Maryland case is not the only instance of prospective parents embarking on the exciting path to parenthood through Assisted Reproductive Technology only to be met with fraud and deceit. In 2015, Alison Layton, owner of the California-based group, Miracle Egg Donations, was sentenced to prison for defrauding prospective parents in a Ponzi scheme involving egg donations, promised surrogacy plans, and theft. Unfortunately, because of the vulnerability of prospective parents and the lack of regulation within surrogacy law, families seeking surrogacy services are particularly susceptible to fraud. 

Some countries have taken strict means to regulate surrogacy. For example, Canada, the United Kingdom, and Denmark all ban commercial surrogacy. Additionally, France, Germany, and Italy ban all forms of surrogacy. However, the United States currently has no federal laws regulating surrogacy. Instead, the U.S. has left surrogacy regulation up to the states. 

While many states currently have no laws regulating surrogacy arrangements, some states have taken the initiative to begin regulating surrogacy. For example, New York bans paid surrogacy arrangements entirely (i.e. commercial surrogacy). While a woman can altruistically choose to carry a child for another couple, the surrogate and firm that puts together the arrangement may not be compensated for their services. Other states have followed New York and enacted similar statutes. While these laws have not completely eliminated the ability of prospective parents to use surrogacy services in those states, these laws drastically limit the services available to those families and the opportunities available to the women who choose to become surrogates. 

Although the cases of deceit and fraud that have accompanied some surrogacy arrangements in America seem to warrant the U.S. taking immediate action, not all regulation works to protect surrogates and prospective parents. Regulation of surrogacy, particularly of commercial surrogacy, limits the number of women willing to participate in surrogacy. While there are some women who choose to become surrogates without any expectation of compensation, only permitting altruistic surrogacy arrangements drastically limits the number of available surrogates—which is already a very low number. Additionally, surrogacy regulation laws have been criticized for not acknowledging or protecting groups such as the LGBT community who are heavily impacted by strict bans on surrogacy. 

As participation in surrogacy arrangements increases, there is a strong chance the U.S. will see even more cases of surrogacy fraud. So, it seems as though the time of limited surrogacy regulation may be coming to an end. However, if the U.S. chooses to adopt more surrogacy regulations, one of the most important considerations in deciding how to implement those regulations must be not to limit a surrogate’s ability to become a surrogate and a prospective parents’ abilities to use surrogacy as a viable option in expanding their families. 

Sarah Kirschbaum