What Is Commercial Surrogacy And Is It Legal In The US?

Simply put, commercial surrogacy is any surrogacy arrangement in which the surrogate is compensated for carrying a child for the intended parents or parent, not including reimbursement of all the medical and other surrogacy-related expenses.  

On the other side of the spectrum there’s the altruistic surrogacy arrangement, in which the surrogate is not compensated for carrying the child beyond reimbursement of surrogacy-related expenses. 

The ethical debate

Since the surrogate is compensated for carrying the child, there’s been some debate over the ethics of commercial surrogacy arrangements. 

Critics of commercial surrogacy claim that the process takes advantage of the women who serve as surrogates, especially vulnerable women, and that it turns the creation of human life into a commodity. 

On the other hand, supporters of surrogacy claim that allowing women to go through the entire process, with all its emotional and practical aspects, without compensating them is not only unfair but also exploitative. They do, however, claim that it’s important that surrogacy is properly regulated so that everyone’s rights are protected. 

Is surrogacy legal in the US?

Commercial surrogacy is legal in some US states, in others the laws offer varying levels of protection for both surrogates and intended parents and in a few, any surrogacy type is illegal.

The surrogacy-friendly states are:

• California
• Connecticut
• Delaware
• District of Columbia
• Maine
• New Hampshire
• New York
• Nevada
• Oregon
• Rhode Island
• Washington

The unfriendly states are: 

• Nebraska
• Michigan
• Louisiana 

All the other US states fall somewhere in between - allowing surrogacy with varying levels of protection. 

Click for a detailed map of the legislation for surrogacy and egg donation by state

Types of commercial surrogacy arrangements

Generally speaking, there are 3 main types of surrogacy.

Gestational surrogacy. This is the most common surrogacy type, in which the egg used to create the pregnancy is either the intended mother’s or an egg donor’s. This means that in gestational surrogacy, the surrogate is not biologically related to the child she is carrying. 

Traditional surrogacy. Although this is the first ever surrogacy type known in history, it is less common these days due to the emotional and legal complexities of this practice, because traditional surrogacy uses the surrogate’s own egg, which means she is both the carrier and the biological mother of the child. 

Independent surrogacy. Defined as a surrogacy agreement in which the surrogate and intended parents or parent do not enlist the help of an agency, this type of surrogacy is not necessarily commercial, because in most cases the surrogate is either related to or a close friend of the intended parents. Still, there are some independent surrogacy arrangements that do compensate the surrogate for her service. 

Advantages and disadvantages of commercial surrogacy

The pros and cons of commercial surrogacy depend mainly on the relationship between intended parents and surrogate and where the surrogacy process takes place.

Pros

• Women are fairly compensated for the time and effort they invest in the long and complex surrogacy process. 
• In US states where surrogacy is properly regulated, the rights of all parties involved in the journey are well protected to make sure no one is exploited. 
• In the US, most surrogates pursue surrogacy not only for the financial benefit, but also for altruistic reasons, because they want to help others have a baby. 

Cons 

• The cost of commercial surrogacy is high, much higher than altruistic or surrogacy. 
• In countries where commercial surrogacy is not properly regulated, the rights of all those involved in the process may not be maintained.