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Uncovering the rationale for requiring infertility in surrogacy arrangements.

With little explanation, state legislatures have limited surrogate parenting arrangements to couples in which the intended mother is infertile or unable to bear a child without unreasonable risk. This requirement stands in stark contrast to the diminishing importance of infertility to adoption agencies, which have relaxed or abandoned it as a prerequisite to adoption. Commentators assert that an infertility requirement bars women who want to avoid the nuisance of being pregnant and giving birth from using a surrogate. Despite this patently moralistic explanation, studies now emerging indicate that an emphasis on infertility may further the best interests of the resulting child. Some of these studies suggest that children born of surrogate parenting arrangements may face significant risks of major birth defects, risks of conception that arguably should be avoided if the intended parents can otherwise conceive. Other studies suggest that the child born to intended parents who later conceive may, like Cinderella, face reduced parental investment after a genetic child enters the household. In this Article, Professor Wilson examines whether a maternal infertility requirement can be rationally grounded in valid, significant concerns about risks to the resulting child. The Article identifies areas where additional information is required before studies like these can be relied on to support such a requirement. Ultimately, this Article concludes that an infertility requirement - while not intended by state legislatures as a protective measure - may be inadvertently rational and justifies continued attention to the relationship between infertility and the interests of the resulting children.