According to the National Health Statistics Reports published in 2013, 11% of women age 15-44 reported impaired fecundity while 12% of men aged 25-44 reported some form of infertility. Until new scientific intervention guarantees a cure for both male and female fertility troubles, couples will continue to rely on Assisted Reproductive Technology (ART) and surrogates as viable avenues to establish families and bear biological children. Theoretically, an individual or a couple who solicit the services of a surrogate and the woman who consents to the arrangement of serving as the surrogate both benefit; the employing party is not barred from parenthood due to infertility and the surrogate will gain the opportunity to engage in an altruistic deed and gain some form of compensation in return for the service. Whether a couple independently contract or hire a surrogate from a commercial company, the necessary exchange of money between two parties engenders serious legal implications—implications in which current family and adoption laws cannot possibly and adequately solve.
Inconsistent, highly variable, nonexistent, or unenforced surrogate laws among states exacerbates the legal complexity of surrogacy contracts or agreements and hinders the ability of judicial bodies to make sound and informed decisions whenever legal issues arise. Because ART technology exists and is effective, no benefit comes from banning or outlawing in-vitro techniques and consequently, the surrogates who participate in the process. Technological and innovative advances cannot be undone, but as the practice becomes more viable and accessible, regulation and legislation must be enacted to protect all parties explicitly and implicitly involved: the intended parents, the surrogates, and the unborn children. Due to conflicting surrogacy laws at the state level, those who desire children may employ the services of a surrogate from a surrogacy-friendly state if their state of residence bans the practice. Because this financial transaction occurs across state lines, surrogacy becomes an issue of interstate commerce as well as family law. The federal government has traditionally shied away from drafting enforcing laws concerning surrogacy contracts and establishment of parentage, but when these matters intersect with interstate commerce, the federal government possesses the duty and responsibility to intervene where necessary.
Since the inception of surrogate-mediated ART, a number of conflicts have arisen concerning parentage of the rights of each party involved in a surrogacy agreement. Due to the nonexistence of explicit laws defining the roles and rights of concerning parties, judicial bodies have by default shouldered the burden of making judgments and decisions. As cases increase in complexity and legal ambiguity, the need for uniform legislation at the federal level becomes more urgent. Basis for legislation can originate from previous court case rulings such as Johnson...