Power Struggle: The Disproportionate Burden State Surrogacy Requirements Impose upon Women

The use of gestational surrogacy as a means to grow a family is increasing each year as fertility rates decline and single individuals and same-sex couples seek to have children who are genetically related to them. The United States does not have a uniform law governing surrogacy, leaving states to enact their own. While twenty-four states in this country have passed legislation permitting surrogacy and twenty-four others allow surrogacy in practice, the vast majority of states impose laws or practices that unduly burden women. In particular, Louisiana has the most restrictive surrogacy regime in the country. The state’s gestational carrier contract mandates go far beyond its standard contract requirements and are especially burdensome for the female parties to the contract. In a post-Dobbs world, the protection of threatened reproductive rights, including surrogacy, is most critical. Utilizing Louisiana as a case study, this Article examines the requirements imposed upon surrogates and intended mothers through the lens of traditional contract law and feminist legal theory. This Article advances the premise that states should amend their surrogacy laws to address the provisions that are unduly burdensome for the female parties to surrogacy contracts by (1) examining the seminal case that became a lightning rod for surrogacy opposition, (2) highlighting the surrogacy laws and practices in place in this country and abroad, and (3) advocating for specific revisions to discriminatory surrogacy laws with the goal of making the practice more equitable for women. This Article also offers the most up-to-date and comprehensive overview of surrogacy laws across the United States.