On June 24th, 2022, the U.S. Supreme Court overturned Roe v. Wade, a monumental court decision that had previously given women the right to abortion and autonomy over their own bodies. With the overturn of such landmark legislation, this news received worldwide attention. The federal settlement retracts women’s rights as well as the health and lives of their babies. This decision stirred controversy among the public and is debated due to its consequences on mothers and families across the U.S. Moreover, this decision has affected the less-talked-about issue of surrogacy.
Unlike the overturn of Roe v. Wade, the issues that arise with surrogacy have not received enough attention from both the public and at the federal level. With ever-advancing technology, the number of surrogacy arrangements has been increasing . According to Bandelli, “the number of transfers for [Assisted Reproductive Technology (ART)] cycles using gestational carriers [has] more than doubled, from 2,251 in 2006 to 4,725 in 2015” . Even with the consistent increases in ART procedures including surrogacy, it is oftentimes not included in the agenda for women’s rights and women’s movement. Moreover, there are no proper regulations and legislation on surrogacy at the federal level, except for the proposal for an updated Uniform Parentage Act (UPA) by the Uniform Law Commission (ULC). Though the demand for attention and resources for surrogacy is increasing, the current resources are not sufficient for the procedures to take place. Such lack of resources will negatively affect same-sex or infertile couples since the lack of proper legislation and regulations may pose risk in carrying out a safe surrogacy process.
In terms of the effect that the overturn of Roe v Wade has on surrogacy, the current U.S Supreme Court decision worsens the already complicated issues concerning surrogacy. One of these issues includes the ongoing debate on its ethics. According to Bandelli, there are two sides to this debate: “an abolitionist front” and “the regulatory or reformist front” . The abolitionist front believes that surrogacy should be banned as they see it as “a violation of human rights and commodification of women and children” . On the regulatory, or reformist, front, there are those who are in support of surrogacy and there are those who are not in support of it. However, both parties believe that surrogacy is “an opportunity to achieve the individual desire of having a baby and at the same time to participate in others’ reproduction process” . Such strong opposite views make it challenging to move forward with combating other issues that arise as a result of surrogacy.
Other possible issues that arise with surrogacy involve surrogacy contracts and decision-making during surrogacy. In addition to the biological parent or parents, there is another actor in the play, the surrogate, or the gestational carrier, who is carrying the baby. In the case of making decisions regarding abortion, there is a question of who has the right to terminate the pregnancy. Again, the lack of surrogacy-related legislation and regulations puts different actors in vulnerable positions. There are no specific legislations and regulations for surrogacy contracts at both the state and federal levels. According to Bradley, there is a “large disparity amongst states as to the effect and enforceability of surrogacy contracts” . There are states that do not have relevant laws and regulations regarding surrogacy contracts. Without the necessary policies in place for these contracts, the states put both the surrogate and intended parents in difficult positions, as the surrogate receives compensation for surrogacy and they also carry the child for the intended parents. Proper regulations should be in place for surrogacy contracts so that both parties are able to fairly carry out their roles and undergo a safe surrogacy process.
The recent overturn of Roe v Wade negatively affects surrogacy in the U.S. as it further burdens various aspects regarding surrogacy from surrogacy contracts to decision-making during surrogacy. To minimize such issues, there needs to be proper legislation and regulations both at the state and federal levels that can allow for a more organized, efficient process for all.
Bradley, K. (2016). Assisted Reproductive Technology after Roe v. Wade: Does Surrogacy Create Insurmountable Constitutional Conflicts. University of Illinois Law Review, 2016(4), 1871–1904.
Bandelli, D. (2021). Surrogacy in the United States: The Horse Is Out of the Barn. Springer International Publishing. https://doi.org/10.1007/978-3-030-80302-5_5
Brett, T. E. (2014). The Modern Day Stork: Validating the Enforceability of Gestational Surrogacy Contracts in Louisiana. Loyola Law Review, 60(3), 587–645.
Lazzarini, Z. (2022). The End of Roe v. Wade - States’ Power over Health and Well-Being. The New England Journal of Medicine, 387(5), 390. https://doi.org/10.1056/NEJMp2206055
Misra, S., & Mishra, P. C. (2021). Surrogacy as an Alternative for Depressive Infertile Couples. Indian Journal of Forensic Medicine & Toxicology, 15(4), 2549–2552. https://doi.org/10.37506/ijfmt.v15i4.17088