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Individuals and couples are increasingly using surrogacy to reproduce, creating a need to resolve the lack of clarity surrounding surrogacy arrangements. When parties enter into a surrogacy agreement the current statutory regimes do not guarantee that the intended parents will ultimately be the legal parents of the child. This Note explores the regulation (or lack thereof) of surrogacy arrangements, the risks associated with the lack of a comprehensive regulatory scheme, and how an international market for surrogacy developed. Due to the variability and uncertainty of state laws, surrogacy arrangements can resemble commercial transactions. The uncertainty of domestic laws has encouraged some intended parents to turn to medical tourism firms to help them find foreign surrogates, which creates additional ethical and legal issues. This Note proposes that the use of an approval process prior to forming surrogacy arrangements could eliminate many of the ethical and legal issues associated with surrogacy.
I. INTRODUCTION
In modern times, the three main ways to become a parent are through natural conception, adoption and the use of reproductive technology for surrogacy.1 No one conducts an ex ante review of the parents when a couple naturally conceives. Analysis of the fitness of the parents only occurs after the birth of the child and if abuse or neglect is suspected. However, when prospective parents want to adopt they must rely on the natural parents to conceive a child, and the fitness of the prospective parents is highly scrutinized.3 While most states have clear regulations for dealing with abusive and neglectful parents, and adoption, surrogacy arrangements lack a comprehensive regulatory scheme. Surrogacy falls between natural conception and adoption in the sense that the intended parent(s) create a new child, yet they must rely on a third party - a surrogate - in order to do this.4 Surrogacy arrangements could be regulated using the rules already applied to natural conception, custody issues, or adoption, or the arrangements could be regulated in an alternative way given the variety of genetic relationships that can exist between the child and the intended parents. As individuals and couples continue to have children using surrogacy, there is a need to resolve the uncertainty and lack of clarity surrounding surrogacy arrangements in order to protect the welfare of all...