California is considered one of the most surrogacy friendly places in the world, attracting intended parents from around the globe who are seeking to avail themselves of California’s laws and bustling surrogacy industry. However, California’s statutory scheme overlooks the needs of intended parents who seek to have children through the traditional (rather than gestational) surrogacy route. Laws designed to facilitate commercial gestational surrogacy arrangements make traditional surrogacy arrangements difficult and more costly.
This Note discusses the history behind California’s surrogacy laws. It centers the story of Roger, Huey, and Saffron (two intended parents and one prospective traditional surrogate), discussing the barriers that they and similarly situated families face in California. It dives into the (often flawed) reasoning behind California’s laws, the profit motives that influence the industry as a whole, and the impact on aspiring traditional surrogates and intended parents who cannot afford (or do not desire to engage with) the more expensive gestational surrogacy process.
This Note explores the approach of the United Kingdom, where there is no legal distinction between gestational and traditional surrogacy arrangements and there are strict limitations on third parties profiting from facilitating surrogacy arrangements. While acknowledging the imperfect nature of the UK’s system, the Note suggests that California might consider a similar alternative route for traditional surrogacy arrangements.
This Note fills an important gap in the academic literature by centering the lived experiences of those impacted by California’s laws. Whereas much of the literature available on surrogacy focuses on gestational surrogacy arrangements in the commercial context, this Note considers persons who are pursuing traditional surrogacy arrangements in an altruistic context. It explores misconceptions that have led to traditional surrogacy’s unpopularity and challenges the industry’s paternalistic view and failure to the meet the needs of the U.S.’s changing family structures.
This Note proceeds in five parts. Part I provides an overview of surrogacy and explains the terminology that will be used throughout the paper, with particular emphasis on the legal distinction between traditional and gestational surrogacy. Part II briefly describes the history of surrogacy in the United States, with particular focus on California’s “surrogacy-friendly” statutory scheme. It explores the legislative history behind California’s laws, including the tendency for changes in surrogacy laws to occur after major scandals. Part III describes the practical impact of California’s statutory scheme for families like Huey, Roger, and Saffron, such as difficulty finding counsel, difficulty attaining medical and psychological support, and increased costs. It also discusses how traditional family structures are increasingly less common, particularly in queer communities, and explains why some practitioners are hesitant to accommodate these new structures. Part IV addresses the common argument that traditional surrogacy is more psychologically dangerous and risky, and it explains some of the risks involved in gestational surrogacy arrangements. Finally, Part V explores approaches to surrogacy in the U.K. and suggests a need for alternative systems that support altruistic surrogacy arrangements and traditional surrogates.