Regulating Markets for Gestational Care: Comparative Perspectives on Surrogacy in the United States and India.

Abstract

Eighteen U.S. states and India, as well as at least forty other countries, have no legislation or case law that permits, prohibits, or regulates surrogacy.1 This regulatory lacuna typically exists because of a failure to reach a consensus on legislation or sheer neglect of the issue. In jurisdictions where there is no regulation, a free market model prevails. Intended parents and surrogates negotiate contract terms based on their relative bargaining power and there are no statutes or common law that specifically address surrogacy in those jurisdictions. In those eighteen U.S. states where state legislatures have not mandated certain protections for surrogates, the surrogacy industry has developed strong baseline protections for women who sell gestational care on its own accord. For example, industry norms require that intended par-