By Brenna Callahan

In 2025, it is difficult to imagine a world without surrogacy. Celebrities like Kim Kardashian and Andy Cohen have ushered society into a new era of contracting a womb. The practice benefits same-sex couples and women with prohibitive health conditions. However, its popularity has only recently reached the masses. In the early 2000s, only 738 babies were born through gestational surrogacy each year; as of 2020, nearly 3,000 babies are born annually using the method.

In traditional or non-gestational surrogacy, the surrogate mother is the biological mother of the child. On the other hand, gestational surrogacy allows couples who are unable to carry the baby to term to implant their unique embryo into a surrogate mother’s womb. Both methods, however, are accompanied by varying degrees of emotional and legal issues. In the United States, federal law does not regulate surrogacy; the states pass regulations in accordance with surrogacy trends.

California is widely known as the most “surrogacy-friendly” state and provides its citizens with a comprehensive list of laws to regulate the biological parent-surrogate relationship. A contract creates the relationship between parties and includes typical boilerplate language such as the date of execution. However, the contract should also address more sensitive topics such as the risks and responsibilities of both parties and the surrogate mother’s compensation. In addition to the more pertinent details, the biological parents may also include provisions concerning the lifestyle of the surrogate for the duration of the pregnancy, including their diet and testing they would like to subject the child to in-utero, such as testing for fetal abnormalities.

The nature of the surrogacy relationship and contract begs the question of how the parties maintain privacy. In most cases, the surrogate completes their contractual duties and gives birth to a healthy baby. However, inevitable miscommunications and changing attitudes during pregnancy and after birth can lead to potential disputes between the parties. Initially, state sanctioned litigation was used to settle surrogacy disputes. The New Jersey Supreme Court’s landmark decision in the seminal case In re Baby M created the foundation for surrogacy litigation and provoked the family law reform movement. 109 N.J. 396 (N.J. 1988). The details of the case were exposed in a television series, a novel, and countless tabloids, affording the parties involved no privacy. But, with increasing attention to privacy clauses, surrogacy contracts can be crafted to ensure that neither party is subjected to widespread publicity through litigation.

 So, then, what is the solution? Legal scholars in India suggest that including an arbitration clause in surrogacy contracts is key to a seamless experience. Under this clause, both the biological parents and the surrogate mother can maintain peace of mind throughout the pregnancy. Each side retains confidentiality while preserving the evidentiary nature of litigation by opting for arbitration. Evidence, witness hearings, and procedural posture typically occur in the confines of one room, only exposing the agreement to the privileged decision-making of the chosen arbitrator.

“In the United States, federal law does not regulate surrogacy; the states pass regulations in accordance with surrogacy trends.”

By Brenna Callahan

In the wake of the Dobbs decision overturning a woman’s right to abortion in the United States, ensuring alternatives to litigation in court is vital for the future of surrogacy contracts. Decades of surrogacy matches have relied on both parties and their support systems, including attorneys and mental health professionals, agreeing to defer to the biological parent’s wishes for termination and selective reduction of embryos. According to surrogacy professionals, the Dobbs decision should not interfere with the fundamental privity of the surrogacy contract. However, the inherent risk of pregnancy has now increased for women living in one of the twenty six states likely to ban abortion in the coming years. Medical procedures used to treat abortion are often the same for ectopic pregnancies and incomplete miscarriages. Failure to treat women experiencing these conditions can lead to sepsis, infertility, or death. Now, the biological parents need to discuss the laws of the state in which  the surrogate plans to carry the child and how a pregnancy risk will be managed if state laws do not allow for proper reproductive treatment.

What will this look like for surrogate relationships? First, to ensure the long-term privacy of all parties, the contract should include an alternative dispute resolution mechanism, such as mediation and arbitration, to resolve any conflicts swiftly. Next, the parties should discuss the potential for reproductive laws to shift in certain states. Notably, in instances where the surrogate intends to remain living in a state with restrictions on reproductive health. In that case, the parties should include terms related to foreseeable health risks and how they would manage them. Finally, should an issue arise, the preliminary mediation and eventual arbitration are strictly available for resolution built on privacy.