Hastings Journal on Gender and the Law


There is an outdated assumption that payment in exchange for traditional surrogacy services is equal to "baby-selling." Due to this assumption, there is an unrealistic expectation that altruism alone should sustain traditional surrogacy contracts in place of payment. While there is currently no uniform regulation on traditional surrogacy for-pay contracts in the United States, there is a wealth of conflicting state laws that make traditional surrogacy contracting a confusing area of the law. When it is unclear how a state will treat these surrogacy contracts, individuals enter into these unique contractual arrangements with little to no certainty about their enforceability. This Note argues that federal legislation is necessary in order to ensure uniform and nondiscriminatory regulation of traditional surrogacy for-pay contracts. Further, this Note suggests specific regulations that would best serve the individual surrogates and intended parents, as well as protect the safety and health concerns expressed by the state legislatures.