American Journal of Law & Medicine

Uncovering the rationale for requiring infertility in surrogacy arrangements.


Anyone who reads numerous statutes is frequently left scratching his or her head: is this provision a deliberate, rational requirement or filler thrown in for no apparent reason? One puzzling requirement peppering state surrogacy statutes is the limitation of surrogate parenting arrangements to couples in which the intended mother is infertile, unable to bear a child or unable to carry the child without unreasonable risk to the mother or child. (1) The legislative history of these statutes offers no explanation for this emphasis on maternal infertility. (2)

The only attempted justification for such a requirement comes from commentators who argue that it bars women who want to avoid the nuisance of being pregnant and giving birth from using a surrogate. (3) As Abby Brandel explains,

   Surrogacy should not be available to those who are able but 
   unwilling to have children. It should be accessible only to the 
   infertile. This limitation would, in part, address the concerns of 
   those who fear the development of an underclass of breeder women. In 
   an affirmative sense, "it is important that surrogacy be considered 
   as one of many options for infertile couples rather than a way for 
   women to avoid the rigors of pregnancy by shifting the burden onto 
   another." (4) 

It is conceivable that legislators included this requirement to avoid such exploitation. It is equally plausible, however, that legislators or their staff that drafted the bills are expressing a gut feeling that these reproductive arrangements are unnatural, and should be cabined accordingly. In fact, some view the maternal infertility requirement and other conditions as bare attempts to "eliminate surrogacy arrangements." (5)

Despite these patently moralistic explanations, studies now emerging indicate that an emphasis on infertility may further the best interests of the child who results from the surrogacy arrangement. Some of these studies suggest that children born of surrogate parenting arrangements may face significant risks of major birth defects--risks of conception that arguably should be avoided if the intended parents can otherwise conceive. (6) Other studies suggest that the child born to intended parents who later conceive may, like Cinderella, face reduced parental investment after a genetic child enters the previously nongenetic household. (7) If this pair of risks is adjudged significant as additional studies appear, the risks would legitimize what would otherwise be only a naked moralistic expression--one that, absent more, arguably treats intended parents inequitably.

This Article examines whether requiring maternal infertility for surrogate parenting arrangements unfairly limits the reproductive choices of intended parents. It begins by briefly discussing surrogacy agreements and their regulation in general. It then assesses the traditional arguments used by adoption agencies to justify imposing an infertility requirement on prospective adoptive parents and why infertility has been abandoned in that context. This Article next examines recent studies that suggest an infertility requirement could be rationally grounded in valid, significant concerns about risks to the resulting child, and identifies additional information that is required before studies like these can be relied upon to support such a requirement. Ultimately, this Article concludes that an infertility requirement--while not intended by state legislatures as a protective measure--may be inadvertently rational and justifies continued attention to the relationship between infertility and the resulting child's interests.


Simply stated, a surrogate parenting agreement is one in which a woman, the surrogate mother, agrees to do two things: (1) carry a child to term and then (2) assign her parental rights to the intended parents. As Table 1 shows, surrogate parenting may take the form of traditional surrogate arrangements in which the surrogate mother provides the ovum and the womb. In such a case, the surrogate mother is artificially inseminated with the sperm of a donor or the intended father and, consequently, is the genetic mother of the resulting child. (8) Alternatively, surrogate parenting may consist of a gestational agreement in which the surrogate mother agrees to be implanted with a fertilized egg provided by the intended mother or an egg donor. (9) In this instance, because the surrogate mother is not the genetic mother, the egg is fertilized through in vitro fertilization (IVF). (10) Many surrogacy arrangements necessarily involve IVF because some states allow only gestational agreements. (11)


A handful of U.S. states statutorily permit surrogate parenting arrangements. (12) Of these, several require that the intended mother be infertile, unable to gestate a pregnancy to term or unable to carry the child without unreasonable risk to the mother or child. (13) The way in which this requirement is given force differs from state to state. In Virginia, for instance, a surrogate parenting agreement that is not judicially pre-authorized will only be enforced if it meets certain statutory requirements. (14) In New Hampshire, only those surrogate parenting arrangements that conform to the statute are lawful (15) and any person who "acts in negligent non-compliance" with the statute is liable both for any damages and for child support of the resulting child. (16)

Model acts governing surrogate parenting arrangements duplicate the infertility requirement. For instance, the 2000 Uniform Parentage Act drafted by the National Conference of Commissioners on Uniform State Laws, recommends that U.S. states validate agreements between the intended parents and the gestational mother only if, among other things, "medical evidence shows that the intended mother is unable to bear a child." (17) Proposed legislation outside the United States also imposes infertility requirements on prospective intended parents (18) Although the legislative history of statutes in the United States offers little explanation for the emphasis on infertility, (19) similar requirements outside the United States have stated that "surrogacy for convenience alone, that is, where a woman is physically capable of bearing a child but does not wish to undergo a pregnancy, is totally ethically unacceptable." (20) As the Ontario Law Reform Commission explains, "surrogate motherhood should be a solution of last resort." (21)


The continued role of maternal infertility in surrogate parenting arrangements stands in stark contrast to its diminishing importance in adoption placements, which also create families out of wishful parents and nongenetic children. At one time, adoption agencies, "acting under state authority," (22) explicitly gave preference to infertile couples. (23) Some agencies required a showing of infertility without elaborating on the reason. (24) Other agencies acknowledged that infertility acted as a rough measure of need, ensuring placement of children with childless couples who can most benefit from them. (25) As McWhinnie explained in 1967, for some adoption agencies "the decision about family pattern [was] influenced by the laws of supply and demand. If there are more adopters than babies available for adoption, then the decision is to satisfy the wishes for parenthood of as many childless couples as possible." (26) Working in tandem with privation was the notion that infertile couples would make the best parents since they so ardently desired a child "to love and bring up." (27)

But for other agencies, a darker explanation undergirded the infertility requirement. These agencies "fear[ed] that a fertile couple giving birth to a child after adoption might neglect the adopted child." (28) Thus, the Child Welfare League of America opined in 1944 that "[t]he hazards of adjustment in that family constellation of own and adopted children should make most workers rather wary of placing a child with a couple who may later be able to have their own." (29)

Over the last three decades, a growing number of agencies have rejected sterility as a requirement. (30) George and Synder observed in 1971, for instance, that agency practices favoring "sterile adoptive parents over those able to procreate ... are rapidly fading from the scene." (31) It is no surprise then that infertility did not appear in a list of basic requirements for adoptions in the 1990s. (32) Instead, many agencies today consider infertility only indirectly as a factor of a prospective adoptive couples' ability to parent. (33) As Ellen Paul explains,

   [I]ntegral to every home study is the question of how well they have 
   recognized and adjusted to a great many losses, including: the loss 
   of individual genetic continuity and an unbroken family blood line; 
   the loss of a jointly conceived child; the loss of the physical 
   satisfaction of the pregnancy/birth experience; the loss of the 
   emotional gratification of a shared birth/breastfeeding experience 
   and parent/child bonding at birth; the loss of control. (34) 

It is important to ask why the movement away from infertility in the adoption context should give legislators pause when considering surrogate parenting arrangements. Surrogacy and adoption both create families where two adults are unable to do so alone. In both, moreover, the state regulates the arrangement in its parens patriae capacity as the protector of children. Furthermore, because each arrangement places children in families where there is frequently no natural link, some examination of the similarities in their regulation would seem to be warranted. Since states latched on to and then discarded an infertility restriction (35) to protect nongenetic, adoptive children, their continued reliance on infertility in the case of surrogacy arrangements requires explanation.

The strength of the analogy between the regulation of adoption and of surrogacy is unclear. Adoption agencies may have abandoned infertility in order to secure homes for scores of children awaiting adoption, not because they reexamined the merits of the intuition that infertility matters. Unlike surrogacy, the question to resolve for adoptive children is how to best care for them now that their birth family cannot--not how best to bring them into the world and into a family that desires a child.

It may be that state legislatures simply do not recognize an analogy between adoption and surrogacy and, accordingly, are unbothered by the disconnect between the rules in each context. What appears more likely is that states have not articulated a reason for this policy discrepancy because they lack one. (36) Nonetheless, the historical emphasis on infertility in adoption as a method to protect children suggests policymakers should not lightly dismiss a parallel requirement in surrogacy arrangements. Indeed, there is now reason to believe that state policies, although motivated by other concerns, may operate to protect the resulting children. As the next section shows, new studies indicate that children born of surrogate parenting arrangements may face significant risks, risks that arguably should not be imposed on them if the intended parents can otherwise conceive.


A series of studies suggest that state laws imposing infertility requirements may be inadvertently rational, guarding the anticipated children against potential physical and social problems. Some of these potential problems stem from one process by which the children may be conceived--in vitro fertilization, or IVF. Other problems may arise for the children after birth if the family they join eventually includes both surrogate and natural children. This section will discuss these studies in detail and their implications for a palatable, rational justification for an infertility requirement.


Traditional surrogacy arrangements can be accomplished through artificial insemination by a donor, a procedure that poses little risk to the resulting child. …

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