Summary#
This bill would make most surrogacy contracts involving foreign nationals void and would criminalize brokers who help arrange those contracts. Its stated goal is to stop foreign citizens from using U.S. surrogates to obtain children with U.S. citizenship and to address related national-security concerns. The bill also says custody should be decided by state courts without giving weight to such contracts, and it bars parents who are foreign nationals from getting immigration benefits based on parentage in these cases.
- Main change: Surrogacy agreements are void and unenforceable when the prospective parent is a foreign national and the surrogate is in the United States at birth or is a U.S. citizen or lawful permanent resident—unless there are two legally married prospective parents and at least one is a U.S. citizen or lawful permanent resident.
- Criminal penalty: A broker who knowingly or recklessly helps arrange an agreement that is void under this law can be fined and jailed for up to 10 years.
- Custody rule: When a contract is void, custody of the child is decided under the state law where the surrogate lives, based on the child’s best interests, and the contract is given no legal effect.
- Immigration rule: A foreign national parent of a child born under a voided surrogacy agreement cannot claim immigration benefits based on that parentage.
- Timing: The law applies only to surrogacy agreements made on or after the date the law starts.
What it means for you#
- Surrogate mothers in the U.S.: If you enter an agreement with a prospective parent who is a foreign national, that contract would generally be void. If custody is disputed after birth, the contract cannot be used to determine custody; a state court would decide based on the child’s best interests.
- Prospective parents who are foreign nationals: You generally could not make an enforceable surrogacy contract with a surrogate who is in the U.S. at birth or who is a U.S. citizen or lawful permanent resident. If you are acting through a broker, that broker could face federal criminal charges. Married couples with two prospective parents are excepted only if they are legally married and at least one is a U.S. citizen or lawful permanent resident.
- Surrogacy brokers and agencies: Helping to arrange or facilitate surrogacy agreements that fall under the ban could lead to criminal prosecution (fine and up to 10 years in prison) if done knowingly or recklessly.
- Children born under affected agreements: The surrogacy contract cannot be used to establish parentage or custody; state law will determine custody based on the child’s best interests.
- Immigration applicants: A foreign national who is parent of a child born under an unenforceable agreement may not claim immigration rights or status based on that parentage.
- State courts and family law systems: State courts will handle custody determinations without considering the voided surrogacy agreement.
Expenses#
No direct public cost is identified in the bill text.
- No fiscal note or federal cost estimate is included in the bill text provided.
- This change could increase federal enforcement and prosecution activity because it creates a federal criminal offense for brokers; it could also increase use of state court time for custody disputes. These are reasonable possibilities based on the bill’s new punishments and custody rule, but the bill does not include cost estimates or funding.
- No publicly available information.
Proponents' View#
The bill text sets out reasons and goals that explain why supporters would back it.
- The bill appears intended to stop foreign nationals from obtaining children via surrogacy in the U.S. and then taking those children to other countries.
- It appears intended to reduce perceived national-security risks the bill links to foreign nationals obtaining U.S.-born children (for example, concerns described in the bill about children born to foreign nationals later accessing U.S. positions or sponsoring parents).
- The bill seeks to deter commercial facilitation of such arrangements by making the agreements void and creating criminal penalties for brokers.
- The bill notes that some countries have limits or bans on international commercial surrogacy and uses that to support restricting cross-border surrogacy in the U.S.
Opponents' View#
The bill text and its design raise several practical and legal questions that opponents might point to.
- One concern is legal uncertainty for children and surrogate mothers: voiding contracts could lead to contested custody fights in state courts because the contract cannot be used to determine parentage or custody.
- The bill’s definition includes a presumption about relinquishment of parental rights in certain contracts. It is unclear how that presumption will interact with the rule that such contracts are void and that custody is decided by state law, which could create confusion in court.
- Criminalizing brokers may push some arrangements underground or into informal arrangements that are harder to monitor or regulate.
- The bill does not include details on how federal agencies will coordinate with state courts on parentage, birth certificates, or citizenship documentation in these cases. It is unclear how officials will identify and handle existing practical needs (for example, hospital paperwork) when a contract is void.
- The bill does not include a fiscal estimate or funding for enforcement, so it is unclear who will pay for additional investigations, prosecutions, or increased state court activity.