"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. 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.
"Seventeen states have laws permitting surrogacy, but they vary greatly in both breadth 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.
"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.
"Many states are now considering certain limits and trying to find middle ground.
“My sense of the big picture is that we’re moving toward laws like the one in Illinois, which accepts that the demand for surrogacy isn’t going away but recognizes the hazards and adds regulations and protections,” said Joanna L. Grossman, a family law professor at the Hofstra University law school.
"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.
"The law allows only gestational surrogacy, in which an embryo is placed in the surrogate’s uterus, not the traditional kind, in which the surrogate provides the egg. In addition, it requires that the embryo created in a petri dish must have either an egg or a sperm from one of the intended parents.
“That eliminates some of the concerns about designer babies,” Professor Grossman said.
Lawmakers in New York, Washington, D.C., and elsewhere are considering measures to allow surrogacy.
"But not all states are moving in that direction. In Kansas, for example, there was a hearing in January on proposed legislation that would have imposed a $10,000 fine, or a year in prison, on those entering into a surrogacy contract. The proposal was shelved after a hearing that was packed with supporters of surrogacy, including women who had been surrogates and parents who brought their children through surrogacy, arguing passionately for the benefits.
"The Louisiana bill, like some others, would only have allowed “altruistic” surrogacy, in which the surrogate, usually carrying a baby for a friend or relative, receives no compensation beyond the reimbursement of expenses."