The Bun's in the Oven, Now What?: How Pre-Birth Orders Promote Clarity in Surrogacy Law

Abstract

Confounding legal scholars and practitioners alike, surrogacy law represents a disorganized patchwork of ideals that offers no clear answer in parentage disputes. While some states convey their approval by statute or case law, many states convey their distaste for the practice of surrogacy in the same manner. Then again, a handful of states remain silent about whether surrogacy is considered lawful or patently illegal. By surveying surrogacy laws, and the lack thereof, from the fifty states and the District of Columbia, this article formulates a solution to determine legal parentage in surrogacy arrangements — pre-birth orders. Per the Full Faith and Credit Clause of the U.S. Constitution, pre-birth orders provide a legitimate, enforceable judgment that declares the intended parents in a surrogacy arrangement as a child’s legal parents. Since courts are constitutionally required to honor orders made in other states, pre-birth orders provide family law practitioners and prospective parents with a method to navigate conflict of laws when prospective parents cross state borders. Without advocating that all states should permit surrogacy to take place, this article suggests a requirement for the states legalizing surrogacy to issue pre-birth orders and for all states to recognize pre-birth orders.