WASHINGTON — When Brad Hoylman and his husband wanted to start a family, they looked to a woman nearly 3,000 miles away to carry their child.
The two Manhattanites turned to a surrogate in California, a state with a robust commercial surrogacy industry, because the practice is banned in New York.
The advent of gay marriage, advances in reproductive technology, and the fact that more people are waiting longer to start families have fueled a surge in the surrogacy industry.
In 2015, 2,807 babies were born through surrogacy in the U.S., up from 738 in 2004, according to the American Society for Reproductive Medicine. Women are often paid at least $30,000 to carry a baby created from the egg and sperm of others.
But in many places, once the baby arrives, outdated state laws fail to answer an important question: Who are the parents?
In many states the law is murky or even silent on surrogacy. The industry is free to operate but the contracts signed between surrogates and intended parents may not be legally binding. The baby may be born in a state that views the woman who gave birth as its mother, even if she has no genetic connection to the child.
The legal uncertainty is particularly concerning to the intended parents, who usually spend about $100,000 (including payments to a surrogate and the company she works with as well as doctors and lawyers) and risk ending up without the child they counted on.
In states that ban commercial surrogacy and those with no laws at all, legislators are pushing bills that would legalize the practice, determine parentage before a child arrives, and ensure that contracts are enforceable and followed by all parties. In many cases, they would require surrogates to be at least 21, to have already given birth to their own children, and to undergo medical and psychiatric evaluations before signing a contract.
Surrogacy became legal in Washington, D.C., in April, and lawmakers in Minnesota and Massachusetts debated bills this year but didn’t approve them.
Critics of surrogacy, including both religious conservatives and some feminists, object to what they view as the commodification of both women and children. Opponents point to numerous European countries that have banned the practice and say states should be wary of letting US women be used by others, including foreigners searching for surrogates beyond their borders.
Hoylman, and even some surrogacy critics, say having no rules puts surrogates and parents at risk.
Two married men in Virginia nearly lost their child who was born through a surrogate in Wisconsin after a judge there declared the baby an orphan rather than turn it over to either the parents or the surrogate. The couple later won custody, and the judge resigned.
Hoylman and his husband turned to a surrogate in California six years ago to avoid such trouble. They plan to return to the state in August for the birth of their second child.
Many surrogates say they want legal protection to ensure the intended parents take the baby, regardless of any birth defects or a change in their own life situations.
“Both sides are taking an emotional risk. We’re taking on more of a physical risk; (intended parents) are taking on more of a financial and legal risk,” said Traci Woolard, 44, a Minnesota woman who has delivered five babies as a surrogate after having four children of her own.