Nightmare surrogacy cases are the exception to the normal practice of reproductive law

Before 2026, surrogacy seldom made the news, except for an occasional celebrity birth. In the past year, that has changed: nightmare surrogacy cases now frequently make national news. First, Marks Surrogacy owners Silvia Zhang and Guojun Xuan, who operated an Arcadia agency that secretly matched surrogates with themselves, had 21 children removed from their mansion and were arrested on child abuse charges. The Wall Street Journal also reported on Chinese gaming billionaire Bo Xu, who boasted of seeking 100 children through surrogacy and was barred from receiving parentage judgments in Los Angeles County court after the presiding judge noticed he had multiple pending parentage cases and no plans to pick up his children.

This summer, national news outlets reported the story of Kyla Simpson, a Florida surrogate who kept custody of triplets for 20 months and is now contesting a California parentage judgment in favor of the Chinese intended father, who has been unable to travel to the U.S. The surviving twins were moved to California, where they await the lifting of a Florida court injunction before returning to their father.

Finally, the case of McKenna West, who refused an abortion requested by her intended parents and fled to Texas, sparked a heated debate on surrogacy and abortion rights. West sought a conservatorship over the child and appealed orders to three state supreme courts, and the U.S. Supreme Court denied her request for review.

There is an old adage that hard cases make bad law, and these cases have the potential to make bad law not only through court decisions but also through legislative and executive action. In response to the first two cases, numerous bills have been introduced in Congress to void surrogacy agreements involving international intended parents, specifically Chinese intended parents, and impose criminal liability on those who facilitate matches between international intended parents and American gestational carriers. This year, Florida passed legislation banning Chinese citizens, along with citizens of other "adversarial nations," from pursuing surrogacy regardless of whether they are married to an American citizen, and Texas is also considering legislation banning all international intended parents. In August 2026, President Trump issued Executive Order 14418 prohibiting federal agencies from providing citizenship documents to intended parents who are not married to a U.S. citizen and who have a child through commercial surrogacy. This results in scenarios in which a child born in the U.S. to green card or H-1B visa holders without the use of surrogacy would be entitled to citizenship, but a child born through surrogacy would not.

Proposed legislation is introduced without outreach to stakeholders, including surrogacy agency owners, lawyers, doctors, intended parents, gestational carriers and children born through surrogacy.

If these stakeholders are part of the legislative process, legislators will learn that the bad cases reported in the news are extreme exceptions, understand the actual reasons intended parents seek surrogacy and tailor their legislation to avoid disrupting the vast majority of surrogacy journeys.

If the goal is to prevent individuals from having more children than they can parent or stop intended parents with criminal backgrounds from having children through surrogacy, there are narrower options, such as mandatory criminal background checks or disclosures of the number of children or surrogacy journeys the intended parent is undertaking.

If the concern is that foreign adversaries or noncitizens will use surrogacy to obtain green cards or influence elections, the evidence does not support that concern. While children born in the U.S. can sponsor their parents, they cannot do so until they reach 21. There are faster, more certain avenues for obtaining a green card, such as through investment visas. For international intended parents, a U.S. passport is mainly sought so the child can go home with their parents. Denying a child the right to obtain a passport creates legal uncertainty because the child may be unable to leave the U.S.

Further, the number of international surrogacy journeys is relatively small, and the number involving Chinese intended parents, who draw most of the headlines, is smaller still. CDC statistics show slightly fewer than 10,000 surrogacy IVF cycles in the United States in 2022. The number of surrogacy births is unknown, but at a 37.5% birth rate for all cycles, it is probably around 4,000. Emory University estimated that in 2020 around 30% of these surrogacy transfers were for international intended parents, with Chinese intended parents making up around 42% of this number. This means only around 500 babies were born to Chinese intended parents through surrogacy in 2020, or about 0.01% of the 3,613,647 births in the U.S.

Finally, most international intended parents pursue surrogacy in the United States for the protection it offers, not to exploit it. Surrogacy is legal and protected by case law or statute, and it also protects gestational carriers, who choose their own lawyers and physicians and receive mental health support. States like California also welcome single parents, unmarried couples, same-sex couples and intended parents using donor sperm, eggs or embryos. In many countries where surrogacy is legal, some of these families do not have the same access.

In conclusion, most surrogacy journeys do not resemble the ones in today's headlines. Every day, babies are born through surrogacy and the process occurs without any need for federal or state intervention. While additional regulations could help prevent such situations, they should be carefully developed with input from stakeholders.