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The New Model Guidelines for Surrogacy


by Rachel Lehmann-Haupt, Jan. 6, 2010

The case of Amy Kehoe, the Michigan woman who created twins with donor eggs, donor sperm and a gestational surrogate, has once again raised the issue of the proper guidelines for working with a surrogate mother. Kehoe faced a legal battle with her surrogate who sought (and won) custody of the twins after learning that Kehoe faces psychological health challenges. Because Michigan law states that surrogacy contracts are void and unenforceable, the surrogate went to court to have the Kehoes’ guardianship rescinded. And she won.

Dr. James Goldfarb, the former President of The Society for Assisted Reproductive Technology (SART) and a reproductive endocrinologist with University Hospitals in Cleveland, Ohio – where the first surrogate baby was born in 1986 - has worked with both the ethics committee of the American Society of Reproductive Medicine (ASRM) and The American College of OB-GYNs to establish recommendations to parents who are thinking of going the surrogacy route. “They are just basic guidelines,” Goldfarb says. “But we recommend using a surrogate who already has a child, and has gone through both psychological screening and independent legal counseling.”

Laws for surrogacy differ from state to state. Some, such as California, are very lenient, while others make it more difficult. For example, some states declare that all contracts between parents and surrogates are unenforceable. Others don’t regulate contracts between the parents and surrogate and, therefore, leave it up the individuals and their lawyers. Some states even require that the couple must legally adopt any child carried by a gestational surrogate.

“The vast majority of surrogacy cases don’t face problems,” says Dr. Goldfarb. “But it’s important for the couple to know what the laws are for the state in which the baby is going to be born. It’s a shame the laws are so different. I don’t think it’s going to happen, but I would love to see a model law that all states adapt.

Recently, a committee of the American Bar Association wrote a Model Act governing reproductive technology in which they made new recommendations on surrogacy law. “The model act tries to set forth guidelines for the qualification of and screening of people who participate in surrogacy to make sure they are appropriate people and are properly participating in the process,” says Steve Snyder, a reproductive rights lawyer in Minneapolis who chaired the committee that drafted the act.

The guidelines recommend that a judge must always approve the contract between the surrogate and the parent, the surrogate must contractually agree to give up parental rights, and the parents must agree to accept the child as theirs regardless of the child’s physical or mental condition. The act sets out to establish the intended parents from the beginning. “Under this model act, the Michigan case would not have happened,” says Snyder. "The surrogate would not have been able to try for custody and the intended parents would have gone through psychological screening."

If you are considering surrogacy, you may want to let the recommedations in these guidelines direct you. You may also want to consider these recent recommendations from a surrogacy lawyer.


Rachel Lehmann-Haupt ( is a journalist and the author of In Her Own Sweet Time: Unexpected Adventures in Finding Love, Commitment and Motherhood (Basic Books, 2009).