The problem with the US surrogacy system

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Why it’s easier to open a surrogacy agency than a nail salon in most US states.

For some couples, surrogacy is a miracle: an opportunity to have a child even if they’re unable to conceive one naturally. But it’s also big business. Not only is surrogacy expensive — think six figures — but it’s also largely unregulated. And that last part is becoming a bigger problem.

Just last week, a California couple was arrested on child abuse charges after it was revealed that they had over 20 children from different surrogate mothers living in a large mansion in Arcadia, a city near Los Angeles. Many of the surrogates are currently fighting for custody through the courts of the children they carried.

The Arcadia case, however, is only the most recent example of how surrogacy can go wrong. Every case is different, but every one illuminates how opaque — and often ripe for abuse or legal issues — the American surrogacy industry is.

Emi Nietfeld is a reporter at Washington Sun who writes about surrogacy, IVF, and how we build families. She spoke with Today, Explained co-host Noel King about what’s kept lawmakers from regulating the surrogacy industry, the recent high-profile cases bringing these problems to light, and why more regulation doesn’t necessarily offer a straightforward fix.

Below is an excerpt of their conversation, edited for length and clarity. There’s much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify.

The United States does not regulate the surrogacy industry seemingly at all. What is going on? Why not?

The lack of federal regulation is both political and financial. Politically, this goes all the way back to the start of IVF. Anti-abortion Republicans were not comfortable with the idea of creating and destroying embryos during IVF, and so they fought against efforts to regulate it.

People on the left were worried that limiting what kinds of technology you could access would lead to the government controlling who could have families. You still see these arguments today. People who think that IVF is murder don’t want to have any surrogacy. And people on the left don’t want the government saying who can and cannot have a family.

One of the issues raised by the New Yorker story is that there are surrogacy agencies that connect parents and potential surrogates. And it makes you wonder who gets to do that? Who can own and operate a surrogacy agency in the US today?