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Nearly 20 years ago, the battle over Baby M brought national attention to the growing practice of surrogacy. At that time, scholars and policymakers warned that regulating surrogacy was essential to prevent the devastating conflict that surrounded Baby M. Since then, disputes over parentage in surrogacy arrangements, while rare, continue. This entirely preventable harm demonstrates states’ failure to regulate adequately the agencies that promote and arrange surrogate parenting agreements and to clearly identify the parentage of children born as a result of such agreements, as well as the judiciary’s failure to quickly resolve parentage disputes. Absent adequate regulation, many participants in surrogacy agreements find themselves in the Wild West of family law. Consider one such complicated surrogacy arrangement, which involved an Ohio man and his fianc�e who entered into a surrogacy contract with a Pennsylvania woman through an Indiana-based agency, Surrogate Mothers Inc. (SMI), in 2003. SMI arranged to implant the Pennsylvania woman with embryos created by a Texas woman’s eggs and the Ohio man’s sperm. The Pennsylvania woman successfully gave birth to triplets. After she brought them home, the Ohio man sought custody and to exclude her parentage. Bereft of legislative guidance, a Pennsylvania trial judge voided the surrogacy contract, declared the Pennsylvania woman the triplets’ legal mother, and identified the Ohio man as their legal father. She received primary custody; the Ohio father, partial custody. An Ohio court contradicted that decision and identified the Texas woman as the legal mother, but left custody up to Pennsylvania courts to decide. At that point, the triplets had different legal mothers in different states. When the triplets were two, a Pennsylvania appellate court overturned the trial court decision. That court avoided ruling on the validity of the surrogacy contract, but gave it effect by finding that the birth mother was merely a gestational carrier with no parental rights. The court ordered the children to be placed with their biological father immediately. It did not identify a legal mother. Absent even a court-ordered transition period, the triplets were left to face the emotional trauma of losing their primary caregiver-the person they knew as mother-along with the home and family to which they were accustomed. A failure to regulate This case highlights the failure to adequately license and oversee the business of surrogacy, and the damage that can occur as a result. A New Jersey man who operated a surrogacy agency was recently arrested for charging couples but failing to supply the promised surrogate mothers. Such poor state licensing leaves couples interested in surrogacy vulnerable to fraud and negligence. Of utmost concern is the failure by many states to define the parentage of children born through these various arrangements. Without legal guidelines, uncertainty reigns should the gestational carrier or surrogate refuse to release a child or the intended parents reject a child born with unexpected disabilities. While adults who agree to these contracts may assume the risk of an uncertain outcome, the subject matter of these contracts-the children-cannot protect themselves from the lack of regulation. All children are entitled to know who their parents are. State legislatures must define those responsible as parents in surrogacy disputes. The Uniform Parentage Act of 2000, as amended in 2002, which provides for prior judicial approval of surrogacy parenting agreements and defines the consequences of a failure to obtain such approval, deserves careful consideration by state legislatures. Adopted by seven states and under consideration in others, it ensures clear parental responsibility for all children born as a result of surrogacy arrangements. Even states that reject surrogacy, as some have, should at least define parentage resulting from such agreements. Finally, courts have not responded to these difficult conflicts as expeditiously as possible. Courts should strive for speedy decisions regarding parentage and custody, before deep bonds develop. Regulating surrogacy involves difficult choices. But state legislators must find the courage to make these decisions. And, with or without legislative guidance, state courts must promptly resolve surrogacy disputes to avoid destroying the parent-child relationships on which children’s emotional health depends. When the court process has created parent-child relationships, court orders should be designed to minimize the trauma of disrupting those relationships. We’re the grown-ups here-protecting children born through surrogacy is our responsibility. Theresa Glennon is the Feinberg Professor of Law at Temple University James E. Beasley School of Law, where she teaches family law.

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