A historical snapshot of the rise in the practice of surrogacy in Minnesota and beyond, from the 1970s to today.
Beginnings of third party reproduction – 1970s
1976 A Michigan infertility center creates first surrogacy contract for a traditional surrogacy arrangement
Traditional surrogate = a woman who is artificially inseminated with a father’s sperm, carries a pregnancy to term, and then gives the baby to the intended parents at birth.
1978 First baby born by In Vitro Fertilization (IVF) makes it possible to fertilize an egg with sperm outside of a woman’s body
The rise of surrogacy – early 1980s
1980s Elizabeth Kane becomes the first woman to enter into a paid traditional surrogacy contract in the U.S.
Elizabeth Kane later becomes a vocal opponent of surrogacy, publishing a book chronicling her negative experiences
1983 Gestational surrogacy becomes possible with first successful pregnancy via egg donation
Gestational surrogate = a woman who undergoes an embryo transfer, using someone else’s egg, and carries a pregnancy to term.
1985 First gestational surrogacy arrangement takes place in U.S.
Some reports estimate that 95% of all commercial surrogacy arrangements in the U.S. today are gestational.
Breakdown of surrogacy contracts – late 1980s
1986 The ‘Baby M’ court case: a birth mother, Mary Beth Whitehead, in a traditional surrogacy contract fights for custody of her baby.
Judge awards custody to the intended parents and declares in a judicial opinion that surrogacy contracts and arrangements are illegal and invalid
1988 The Nowakowski twins court case
– Traditional surrogate gives birth to twins, and intended parents decide they only want the girl, leaving boy with the birth mother
– Birth mother and her husband decide to raise the son and fight for—and win—custody of the daughter
Practice of surrogacy begins to be scrutinized and is banned in some countries – late 1980s to early 1990s
1988 and 1992
New York and New Jersey create state legislative task forces to research the practice of surrogacy, its effects on women and children, and the surrogacy industry
Task forces conclude, based on their research, that public policy should discourage surrogacy contracts, and that legislation should be enacted prohibiting commercial and non-commercial surrogacy.
Despite these two state-based studies, many states do not have any laws restricting or prohibiting surrogacy altogether. Minnesota is one of those states. (STATE-BY-STATE REPORT OF SURROGACY LAWS)
1994 European countries begin to prohibit or restrict surrogacy
1994 France amends its civil code to specifically forbid all surrogacy agreements. Article 16-7 of the Civil Code: “All agreements relating to procreation or gestation on account of a third party are void.”
1998 Switzerland expressly forbids surrogacy by the Federal Act on Medically Assisted Reproduction, which amended the Constitution
Commercial surrogacy industry aims to expand despite growing concerns – 2000s
2002 “Fertility tourism” begins to rise in popularity in the Global South
– India legalizes commercial surrogacy industry
– Infertile couples begin hiring women overseas to carry their
child if their home country prohibits or regulates commercial surrogacy
The commercial surrogacy industry in India is now estimated to generate $500 million annually.
A Minnesota state legislative task force studies the federally proposed Uniform Parentage Act
The task force declines to adopt the provision of the Act pertaining to surrogacy, instead recommending that surrogacy be studied more thoroughly prior to any enabling legislation.
The 2002 Minnesota Uniform Parentage Act states: “[A]dditional analysis and legislation are needed to address public policy concerns involving gestational agreements, including whether such agreements should be permitted by law,” and that “[t]here are several complex public policy considerations that the Task Force believes require serious deliberation and discussion before any legislation is implemented in Minnesota…These concerns are multifaceted and have significant social, moral, and ethical dimensions that the Task Force believes require additional analysis, discussion, and debate.”
Despite the recommendation, commercial surrogacy industry enabling legislation is developed by Minnesota’s commercial surrogacy industry leaders and introduced for consideration by the Minnesota State Legislature. It does not pass.
2004 Italy places strict regulations on artificial technology procedures related to human reproduction, and declares all surrogacy contracts null and void
Number of babies born to gestational surrogates grows 89% percent
Based on data collected from the Center for Disease Control (CDC) and Society for Assisted Reproductive Technologies (SART).
2006 First contested gestational surrogacy contract court case in Minnesota
Custody granted to the single biological father. The surrogate mother was the niece of the biological father. She was not granted visitation rights in the court ruling.
2007 Canada bans birth mother compensation in all surrogacy arrangements or contracts. Quebec bans all surrogacy contracts.
Surrogacy enabling legislation introduced in Minnesota Legislature
Bill passes through legislature, but Governor Tim Pawlenty vetoes it.
Concerns with the legislation include:
– Adequate level of protections provided to the surrogate birth mother and child in legislation.
– The practice of paying a surrogate mother for services rendered.
2010 First contested traditional surrogacy contract court case in Minnesota
Physical and legal custody of the child is awarded to the biological father. The court determines the father’s partner is not a legal father of the child. The court recognizes the surrogate mother as the child’s biological and legal mother, but does not grant custody.
European Parliament adopts a resolution on violence against women that condemns surrogacy as a violation of women’s human rights, exploitation of women’s bodies and reproductive organs, and trafficking of women and children
The first fertility clinic opens on Mexico’s Yucatán peninsula, fueling an increase in international “fertility tourism” industry boom
Commercial surrogacy enabling legislation introduced in Minnesota legislature. Bills do not pass out of legislative committee for a vote.
Commercial surrogacy enabling legislation introduced in Minnesota legislature. Bills pass out of committee, but the House and Senate do not vote on them.
“Fertility tourism” industry continues to grow in the Unites States as European countries restrict or ban commercial surrogacy due to concerns about women’s and children’s rights