US surrogacy will be banned over the gaps, not the practice

A Dallas judge has issued a temporary restraining order keeping a newborn hospitalized in Texas pending a custody hearing that will involve authorities in Alaska, California and Texas ^[3]. The baby was delivered on Aug. 12 at Children's Medical Center of Dallas by McKenna West, an Alaska nurse and single mother of two who was hired through a for-profit agency by a California couple, Omar Ahmed and Nausheen Gilkar, to carry their embryo ^[8][9]. What is in dispute is not whether surrogacy should exist. It is that the document governing the arrangement did not survive contact with the first hard contingency.

Near 20 weeks, the fetus was diagnosed with a rare, life-threatening heart defect, and West says the couple then demanded she end the pregnancy ^[12]. The contract required abortion in the case of a massive fetal defect; West broke it and flew from Alaska to Dallas knowing that abortion is basically illegal in Texas, where she sought and received support from local anti-abortion groups and politicians ^[2]. A clause whose performance is a crime in the state the surrogate has moved to is not a term; it is a preference ^[10]. That is a drafting failure before it is an ethics failure.

The precedent is old. In March 1986, Mary Beth Whitehead and her husband took a baby girl from a New Jersey hospital three days after Whitehead gave birth and drove to Florida, launching the first American case on the legitimacy of surrogate motherhood ^[5]. She had agreed to be inseminated with William Stern's sperm using her own eggs, carry to term and relinquish parental rights for $10,000 ^[6]. In 1988 the New Jersey Supreme Court held surrogacy contracts invalid in the state and sent parenting back to family court, which gave custody to the Sterns ^[7]. Contract validity and abortion law both vary by state, so the enforceability of a surrogacy agreement moves with the surrogate ^[18].

Four decades on, the STAT opinion piece describing the West case says there are no legal limits on who can hire a surrogate, who can be a surrogate, or how many surrogates one set of intended parents can hire at the same time, with concurrent surrogacy used to raise the odds of a birth and, in some instances, by wealthy single men producing as many biological offspring as they want ^[13][14]. No law resolves what happens when a surrogate changes her mind or endangers the pregnancy, when a serious birth defect appears, when payments stop, or when the intended parents die, divorce, go bankrupt or are arrested ^[15]. Surrogates cross state lines and some go overseas, which the author calls a shambles of legal jurisdiction ^[16].

That gap list is the specification. Each unresolved contingency the piece names maps to a term the industry could write today: a named decision-maker for termination and for neonatal care that does not change with geography; forum and jurisdiction fixed at signing; escrowed medical and living costs so non-payment is not a bargaining lever ^[15]; disclosure and a cap on concurrent carries ^[14]; and screening of intended parents against the exact contingencies listed, with a named successor guardian ^[13][15].

The alternative is already organized. Calls for a total ban now come from the Vatican, Southern Baptists, various U.N. agencies, the Heritage Foundation and many feminist advocacy groups ^[4]. The author rejects prohibition and proposes eight principles enacted through state law, since states generally oversee surrogacy ^[1]; the enumerated principles are not in the text supplied to us.

Watch the custody hearing, because surgery for a heart malformation like this one is risky and a transplant is a long shot given the scarcity of donated infant hearts, so whoever wins custody decides what care happens and where ^[17].