For some couples, surrogacy is a miracle: an opportunity to have a child even if they’re unable to conceive one naturally. But it’s also big business. Not only is surrogacy expensive — think six figures — but it’s also largely unregulated. And that last part is becoming a bigger problem.
Just last week, a California couple was arrested on child abuse charges after it was revealed that they had over 20 children from different surrogate mothers living in a large mansion in Arcadia, a city near Los Angeles. Many of the surrogates are currently fighting for custody through the courts of the children they carried.
The Arcadia case, however, is only the most recent example of how surrogacy can go wrong. Every case is different, but every one illuminates how opaque — and often ripe for abuse or legal issues — the American surrogacy industry is.
Emi Nietfeld is a reporter at Washington Sun who writes about surrogacy, IVF, and how we build families. She spoke with Today, Explained co-host Noel King about what’s kept lawmakers from regulating the surrogacy industry, the recent high-profile cases bringing these problems to light, and why more regulation doesn’t necessarily offer a straightforward fix.
Below is an excerpt of their conversation, edited for length and clarity. There’s much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify.
The United States does not regulate the surrogacy industry seemingly at all. What is going on? Why not?
The lack of federal regulation is both political and financial. Politically, this goes all the way back to the start of IVF. Anti-abortion Republicans were not comfortable with the idea of creating and destroying embryos during IVF, and so they fought against efforts to regulate it.
People on the left were worried that limiting what kinds of technology you could access would lead to the government controlling who could have families. You still see these arguments today. People who think that IVF is murder don’t want to have any surrogacy. And people on the left don’t want the government saying who can and cannot have a family.
One of the issues raised by the New Yorker story is that there are surrogacy agencies that connect parents and potential surrogates. And it makes you wonder who gets to do that? Who can own and operate a surrogacy agency in the US today?
Anyone.
Oh. Oh no.
Only one state, New York, requires a special license. And everywhere else it’s easier to open an agency than a hot dog stand or a nail salon. This has resulted in the rise of so-called pop-up agencies where businesses come onto the scene, and nobody really knows who owns them or who’s running them. That has led to many people who aren’t experienced, who sign up with these agencies, then feeling like they weren’t prepared or that they were deceived in entering the agreement.
Have we ever tried in the past to regulate this better? Have there been efforts made?
In the 1980s, there was the case of Baby M. That was called traditional surrogacy where Mary Beth Whitehead was the surrogate, but it was also her egg. So the child she delivered was genetically related to her. After she gave birth, she changed her mind. She kidnapped the child, went on the run for several months, and it was a national crisis where this was all over the news.
Ultimately, a judge in New Jersey ruled that the surrogacy arrangement was unenforceable. Commercial surrogacy arrangements became illegal in New Jersey, and they stayed illegal in New York until 2020.
Part of why regulation looks the way it does is because in 1995, Congress passed a piece of legislation saying that there would be no federal funding for embryo research, which means no federal funding for IVF. That left all of the research, development, innovation up to the free market. And so while that could be seen as an attempt to regulate IVF, it actually meant that those things would no longer be under the government’s purview.
In the US, we’ve seen over the past few years some really high-profile cases that are making lawmakers reckon with the fact that we do not have laws around this. Tell me about some of those cases.
There’s the Mark surrogacy case in California, which is both a really unique case and also illustrates some of the fears around Chinese intended parents coming to the United States to have their kids. This is part of larger geopolitical tensions between the US and China, which are playing out in the surrogacy industry.
There’s the case of Xu Bo, the Chinese video gaming billionaire who is rumored to have more than 100 children via surrogacy in America. His story taps into fears of birth tourism and people from other countries, especially China, coming to the United States to do surrogacy so that their kids are American citizens.
Republican lawmakers are talking a lot about the idea that people could come from enemy countries, have American citizens, and raise them with the intent that they might one day become spies or president of the United States and be double actors.
In Texas, there’s the case of McKenna West, where she learned at 20 weeks’ gestation that the baby was very sick. The intended parents asked her to get an abortion. She refused to do so. McKenna went to Texas and began fighting for custody to keep the baby while the parents objected. They wanted the baby, and she petitioned the Supreme Court, which declined to hear the case.
And finally, there’s the case of Kyla Simpson in Florida, whom I wrote about for New York Magazine, and she gave birth for a single dad in China who wasn’t there for the birth. He hadn’t applied for a visa to come to the United States, and when he did apply, he was rejected. Kyla Simpson tried to adopt the kids and is now fighting for custody in a case that’s still working its way through the Florida courts.
These examples are extraordinary, and they point to just chaos. But how common are they? Are they outliers? Is this going on all the time?
Most of the time things go right. In the academic papers around surrogacy, surrogates are usually happy with their experience. Attorneys and surrogates tell me that it’s absolutely beautiful to hand people the baby that they’ve been working hard for. The issue is that when things do go wrong, there’s often not a lot of recourse or there’s a really big legal mess that parents and surrogates have to go through.
I wonder if there is a case against more regulation. As disastrous as some of these examples are, you said that most of the time, it does go right. And it seems like we could get into tricky territory if we start saying who can and can’t have a kid.
Surrogacy is already really time-consuming. It often takes several years, and it’s expensive, usually costing between $150,000 to $250,000 for a single pregnancy. Regulation tends to make things more expensive and take longer. A lot of people fear that if you introduce more requirements and more burdens, surrogacy will become even more out of reach to people.
There’s also the fear of government overreach. If you ask the government how many kids a gay couple should have, the answer might be zero. And that libertarian streak is driving a lot of opposition to things that most people might consider common sense.
For example, there’s a lot of talk around whether intended parents should go through background checks before they have kids via surrogacy. Right now, no state in America requires intended parents to go through a criminal background check before having a kid. Critics of regulation say heteros don’t need a background check to have sex in the back of a car and make a baby the old-fashioned way, so it’s unfair to require that from people who need to do surrogacy to have a family.
Most people can agree that surrogacy could be better regulated, but like many things in our country, it’s almost impossible right now because of politics.