Uncovering the rationale for requiring infertility in surrogacy arrangements.

I. INTRODUCTION Anyone who reads numerous statutes is frequently left scratching his or her head: is this provision a deliberate, rational requirement or filler thrown in for no apparent reason? One puzzling requirement peppering state surrogacy statutes is the limitation of surrogate parenting arrangements to couples in which the intended mother is infertile, unable to bear a child or unable to carry the child without unreasonable risk to the mother or child.1 The legislative history of these statutes offers no explanation for this emphasis on maternal infertility.2 The only attempted justification for such a requirement comes from commentators who argue that it bars women who want to avoid the nuisance of being pregnant and giving birth from using a surrogate.3 As Abby Brandel explains, Surrogacy should not be available to those who are able but unwilling to have children. It should be accessible only to the infertile. This limitation would, in part, address the concerns of those who fear the development of an underclass of breeder women. In an affirmative sense, "it is important that surrogacy be considered as one of many options for infertile couples rather than a way for women to avoid the rigors of pregnancy by shifting the burden onto another."4 It is conceivable that legislators included this requirement to avoid such exploitation. It is equally plausible, however, that legislators or their staff that drafted the bills are expressing a gut feeling that these reproductive arrangements are unnatural, and should be cabined accordingly. In fact, some view the maternal infertility requirement and other conditions as bare attempts to "eliminate surrogacy arrangements."5 Despite these patently moralistic explanations, studies now emerging indicate that an emphasis on infertility may further the best interests of the child who results from the surrogacy arrangement. Some of these studies suggest that children born of surrogate parenting arrangements may face significant risks of major birth defects-risks of conception that arguably should be avoided if the intended parents can otherwise conceive.6 Other studies suggest that the child born to intended parents who later conceive may, like Cinderella, face reduced parental investment after a genetic child enters the previously nongenetic household.7 If this pair of risks is adjudged significant as additional studies appear, the risks would legitimize what would otherwise be only a naked moralistic expression-one that, absent more, arguably treats intended parents inequitably. This Article examines whether requiring maternal infertility for surrogate parenting arrangements unfairly limits the reproductive choices of intended parents. It begins by briefly discussing surrogacy agreements and their regulation in general. It then assesses the traditional arguments used by adoption agencies to justify imposing an infertility requirement on prospective adoptive parents and why infertility has been abandoned in that context. This Article next examines recent studies that suggest an infertility requirement could be rationally grounded in valid, significant concerns about risks to the resulting child, and identifies additional information that is required before studies like these can be relied upon to support such a requirement. Ultimately, this Article concludes that an infertility requirement-while not intended by state legislatures as a protective measure-may be inadvertently rational and justifies continued attention to the relationship between infertility and the resulting child's interests. II. ROLE OF INFERTILITY IN SURROGACY ARRANGEMENTS AND ADOPTION Simply stated, a surrogate parenting agreement is one in which a woman, the surrogate mother, agrees to do two things: (1) carry a child to term and then (2) assign her parental rights to the intended parents. As Table 1 shows, surrogate parenting may take the form of traditional surrogate arrangements in which the surrogate mother provides the ovum and the womb. …