Beyond Standards and Toward Accountability in Surrogacy Practice

By Rich Vaughn

Surrogacy rests on trust. The legal and professional safeguards surrounding it exist to protect the people who enter these arrangements, but their value depends on how far those protections reach and how faithfully they are applied.

Working in assisted reproduction law has given me a close view of how personal, hopeful, and vulnerable these journeys can be. Contracts are important, but so are the integrity and care of the professionals people rely on to guide them through the process.

Recent accounts of surrogacy arrangements that went badly have stayed with us because they reveal what can happen when the protections surrounding a journey do not work as intended. They also raise questions our field should be willing to examine with candor. Rather than focus on any one case, I want to step back and consider a broader question. What gives a safeguard real force in practice?

Helen Lewis’s September 2026 article in The Atlantic, “Mothers for Sale,” provides one lens through which to consider that question. It recounts difficult experiences involving screening, the exchange of information between parties, matching, and the treatment of surrogates before and after birth. None of these concerns are new to assisted reproduction. The accounts are nevertheless a timely reminder that having standards on paper is only the beginning.

The deeper issue is how those standards operate in practice, who must follow them, how far they reach, and what happens when they fail.

My aim here is to bring those safeguards into clearer focus and examine where they work, where their reach is limited, and where greater accountability may still be needed. For intended parents and surrogates, I hope this article offers a clearer picture of the protections that should surround a responsible journey. For those of us who work in this field, I hope it prompts a harder look at how well the standards we rely on are doing the work they were created to do and how faithfully we are honoring them ourselves. The field has accepted difficult limits before. The move toward single embryo transfer, which the American Society for Reproductive Medicine (ASRM) strongly recommends in all gestational-carrier cycles, asked clinics and patients to transfer fewer embryos in the interest of safer pregnancies. Responsible surrogacy practice may ask something similar of us.

The safeguards at the center of responsible practice

Surrogacy in the United States does not operate under a single national legal framework. There is no federal law that comprehensively governs surrogacy arrangements. Instead, states regulate surrogacy through statutes, court decisions, and other state-specific rules. Federal law reaches certain aspects of assisted reproduction, including the regulation of donated reproductive tissue and reporting requirements for fertility clinics, but it does not create a nationwide system for surrogacy.

In some states, several of the protections discussed in this article are already required by law. California, for example, requires independent legal counsel and imposes specific escrow requirements. Washington requires surrogates and intended parents to complete medical evaluations and mental health consultations and to have independent legal representation throughout the arrangement. New York provides additional protections through its Child-Parent Security Act, whose Surrogates’ Bill of Rights guarantees, among other things, independent counsel and the surrogate’s right to make decisions about her own health and welfare.

These state laws also exist alongside model legislative frameworks intended to bring greater consistency to assisted reproduction law. The 2017 Uniform Parentage Act  and the  2019 Model Act Governing Assisted Reproduction, adopted by the American Bar Association (ABA), provide states with models for addressing parentage and surrogacy in a more comprehensive way. They are not binding unless enacted by a state, but they offer an important benchmark for jurisdictions considering how to strengthen and modernize their laws.

The challenge is that these protections are not uniform across the country. One state may impose detailed safeguards while another may take a very different approach.

Professional standards help fill some of that space. ASRM, a multidisciplinary organization in reproductive medicine, publishes clinical and ethical guidance addressing medical and psychological screening, counseling, legal consultation, matching, and the relationship between intended parents and gestational carriers.

Other organizations approach surrogacy from the perspectives of agency practice and law. The Society for Ethics in Egg Donation and Surrogacy (SEEDS) has adopted Standards of Ethical Conduct that are mandatory for its member agencies, along with Guidelines that offer additional recommendations. The Academy of Adoption and Assisted Reproduction Attorneys (AAAA) maintains a Code of Ethics that supplements the professional conduct rules governing its Fellows.

None of these sources creates a single set of rules binding everyone involved in surrogacy. Their authority differs, and so does their reach. Yet many of the protections they describe point in the same direction. Read together with applicable state law, they provide a useful framework for understanding what responsible surrogacy practice should look like.

Six protections appear again and again.

1. Careful screening of all participants. Screening should go beyond basic medical eligibility. It should consider psychological readiness, voluntariness, relevant background information, and circumstances that may make proceeding inappropriate.
2. Full and accurate disclosure. Intended parents and surrogates need reliable information about one another and about any circumstances that could reasonably affect the decision to move forward.
3. Thoughtful matching. Passing screening does not necessarily mean two people are well suited to one another. Expectations around communication, medical decisions, pregnancy, delivery, and the relationship after birth should be explored before a match proceeds.
4. Independent advice and respect for individual decision-making. Each participant should understand who represents them, whose interests that professional serves, and which decisions remain theirs alone to make.
5. Independent financial safeguards. Compensation and reimbursements should be administered through structures designed to reduce conflicts and provide accountability in the handling of funds.
6. Support throughout the process. Expectations surrounding pregnancy, delivery, and the period after birth should be addressed early, with appropriate support available as the arrangement develops.

All six are essential. I have chosen to focus more closely on screening, matching, and independence because these are points at which professional judgment can alter the course of a surrogacy journey. Decisions made at these stages often determine if concerns are identified early and the protections surrounding each participant continue to hold as the process moves forward.

Screening requires a willingness to decline

Screening is one of the first safeguards in a surrogacy arrangement. Its purpose goes far beyond completing a series of evaluations. It is meant to identify concerns before a pregnancy begins, while the parties and professionals involved still have the ability to pause, ask further questions, or decide not to proceed.

The professional guidance and standardsdiscussed above approach screening from both sides of the arrangement.

• For prospective gestational carriers. ASRM guidance calls for medical and psychological evaluation by professionals experienced in third-party reproduction. Physical ability to carry a pregnancy is only part of that assessment. The process also considers voluntariness, circumstances that may create undue pressure, and psychological or relational concerns that could make participation inadvisable. Under the 2025 SEEDS Standards of Ethical Conduct, member agencies must require the prospective surrogate and any live-in partner to undergo a mental health evaluation. They must also obtain comprehensive background checks on the surrogate, her spouse, fiancé or live-in partner, and other adults living in the household.
• For intended parents. Screening does not operate in only one direction. ASRM guidance identifies criteria for rejection of intended parents from a proposed gestational carrier arrangement. These include current or previous perpetration of sexual or physical abuse, involvement of local child welfare services and termination of parental rights, inability to maintain a respectful relationship with the carrier, inability to agree with her authority over specified reproductive decisions, and plans to pursue concurrent pregnancies using more than one carrier or both a carrier and an intended parent.

SEEDS also requires member agencies to obtain comprehensive background checks on intended parents and to require a psychoeducational mental health consultation. AAAA adds another layer of protection. Under its current Code of Ethics, Fellows handling covered surrogacy matters must confirm statements made under oath or penalty of perjury concerning criminal-background information. When intended parents are engaged in, or intend to engage in, more than one surrogacy matter at a time, the Code also requires Fellows to confirm that this has been disclosed to the other parties, their attorneys, and any coordinating program involved.

The practical importance of these safeguards becomes clearer when they are tested against real events.

In July 2025, CBS News reported on a California surrogacy case in which at least one surrogate recruited through Mark Surrogacy received information about the intended parents that did not accurately reflect their circumstances. CBS also described investigators’ belief that women around the country were carrying embryos for the same intended parents at the same time. Separate coverage based on state business records linked Mark Surrogacy to the intended parents themselves.

The available record does not establish that any particular professional standard was violated or what information was available to each professional involved. The AAAA provision described above also took effect on June 4, 2026, after the events described by CBS. Even so, the facts that emerged illustrate the kind of concern that screening and disclosure are designed to uncover before a pregnancy begins.

The case also raises questions about the role of independent professionals and other decision-makers who may encounter warning signs during a surrogacy arrangement. Public accounts indicate that at least one surrogate’s attorney raised concerns with law enforcement after learning of similar arrangements involving other surrogates, and that a California judge sought a child-safety inquiry after seeing the same intended parents named in numerous surrogacy matters. Those responses show the importance of independent scrutiny. They also expose a structural limitation. If intended parents work with different clinics, attorneys, agencies, or other providers, sometimes across multiple states, each may see only one part of the overall picture. ASRM identifies a plan for concurrent pregnancies as a criterion for rejection of intended parents, but a clinic cannot act on information it does not have.

Taken together, these developments offer a broader lesson. Screening and disclosure cannot depend on a single gatekeeper. Safeguards are strongest when independent professionals ask the right questions, act on concerns that emerge, and receive the disclosures that applicable law and professional standards require.

That is why screening cannot end with collecting reports and completing forms. If an evaluation raises questions about readiness, or a background check uncovers information that requires further inquiry, those findings have to affect what happens next. Further evaluation may be necessary. A match may need to be delayed. Sometimes the responsible decision is not to proceed at all.

Those decisions become harder to make as the process advances. Once contracts are signed, treatment has begun, or a pregnancy has been achieved, the ability to revisit an earlier concern becomes considerably more limited.

There is also a limit to what screening can accomplish. Even a careful process can protect only those who remain within it. Lewis describes a prospective surrogate whom two agencies had declined and who later arranged a surrogacy independently and wrote her own agreement. Whatever the merits of those screening decisions, their protective force ended when she chose to proceed outside the process that produced them.

Within that process, declining is rarely easy. In my experience, these are among the hardest conversations in this work. They can bring disappointment, delay, and lost business. They are also largely invisible. There is no birth announcement for an arrangement that stopped because screening identified a serious concern.

Yet that willingness to stop is precisely what gives screening its force.

Compatibility matters as much as eligibility

Imagine a prospective surrogate and intended parents who have each passed screening and appear entirely suitable on paper. One expects frequent communication and close involvement throughout the pregnancy. The other envisions a more limited relationship. They may also approach medical decisions, delivery, or contact after birth differently. None of that makes either party unsuitable for surrogacy. It may make them unsuitable for each other.

That is the purpose of matching. It creates an opportunity to uncover those differences before a pregnancy begins, while the parties can still decide if they are comfortable moving forward together.

ASRM guidance calls for a joint session involving the prospective carrier, her partner or primary support person, and the intended parents. ASRM recommends that the session be led by a mental health professional experienced in gestational carrier arrangements before treatment begins. The discussion may cover prenatal testing, pregnancy management, communication, participation during pregnancy and delivery, plans after birth, and the future relationship between the parties. In practice, agencies may also use case managers to explore similar issues during the matching process. SEEDS likewise requires a joint mental health consultation before an agency permits a cycle to begin.

The goal is not to eliminate every difference. It is to determine if those differences can be managed within a relationship grounded in mutual respect. ASRM identifies incompatibilities involving medical decision-making, communication, behavioral expectations, and the relationship between the parties as potential reasons not to proceed.

Disclosure is an essential part of that process. Under the 2025 SEEDS Standards of Ethical Conduct, agencies should identify participants’ matching preferences and disclose known information that might cause someone to decline a proposed match. The Standards also prohibit agencies from providing false or misleading information to participants.

The quality of the matching process is therefore critical. Two willing parties can be brought together quickly. The harder work is making sure they have explored the areas where disagreement is most likely to emerge.

Lewis’s reporting conveys what can be at stake in these conversations. One surrogate described asking for brief contact with the newborn after delivery, being refused, and experiencing lasting distress from the birth. Her account shows how an expectation that may seem relatively small at the beginning of a journey can carry enormous emotional weight at its end.

Matching cannot anticipate every disagreement. Its value lies in identifying the important ones early enough for the parties to decide if they should move forward together at all.

Independence protects everyone involved

Surrogacy depends on close collaboration, but that collaboration should not blur professional boundaries. Intended parents and surrogates may be working toward the same outcome while still having different interests, responsibilities, and vulnerabilities along the way. Independence is essential because each person should be able to rely on advice and financial arrangements that are not influenced by someone else’s interests.

Legal advice should be independent. Each party needs counsel whose responsibility is clear. A surrogate should have a lawyer who represents only her interests, just as intended parents should have counsel representing only theirs. ASRM guidance emphasizes independent legal counsel for each participant and recommends that counsel remain available throughout the arrangement.

• Payment should not affect loyalty. Intended parents commonly pay the surrogate’s legal fees, and some states, including Washington, require them to do so. However, the lawyer’s duties remain with the surrogate. ABA Model Rule 1.8(f) permits third-party payment only when the client gives informed consent, confidential information remains protected, and the arrangement does not interfere with the lawyer’s independent professional judgment or the client-lawyer relationship. Rule 5.4(c) separately provides that a lawyer may not permit the person paying for the representation to direct or regulate the lawyer’s professional judgment.
• Professional relationships require transparency. Agencies and professionals often work repeatedly with the same lawyers, clinics, and other providers. Those relationships are not inherently problematic, but they make clearly defined roles and transparent referrals especially important. The AAAA Code of Ethics addresses independent professional judgment, identification of the lawyer’s client, and disclosure of certain financial or familial relationships that may affect referrals.
• Financial control should remain separate. Financial control should remain separate. Surrogate compensation and reimbursements are often paid over many months, frequently while an agency is coordinating other parts of the journey. Keeping control of those funds separate from the professionals managing the arrangement reduces conflicts of interest and offers protection if a financial dispute arises. The 2025 SEEDS Standards of Ethical Conduct require member agencies to place unearned or undisbursed participant funds either with a licensed escrow company that the agency does not control and that carries a bond exceeding the total funds it holds in escrow, or in a law firm client trust or escrow account. Agency-held escrow is permitted only in limited circumstances and is subject to additional safeguards, including accounting, bonding, disclosure, and review requirements.

State law reflects this concern, although the details vary. California requires nonattorney surrogacy and donor facilitators to direct clients to deposit their funds with an independent, bonded escrow company or in an attorney trust account, prohibits facilitators from holding a financial interest in the escrow company, and limits disbursement to the attorney or escrow agent. New York makes it a condition of a compliant surrogacy agreement that funds for base compensation and reasonable anticipated additional expenses be placed with an independent escrow agent before the surrogate begins medical procedures beyond eligibility evaluations. Its General Business Law § 1403 separately obliges surrogacy programs to hold intended-parent funds, other than program fees, in an escrow account apart from their operating accounts, and it restricts ownership ties and referral payments involving attorneys and health care providers. Washington takes a closely related approach for covered surrogacy brokers, pairing a separate, licensed escrow requirement with similar conflict-of-interest restrictions.

Among model frameworks, the ABA’s 2016 Model Act Governing Assisted Reproductive Technology Agencies, discussed further below, is particularly explicit, placing independent escrow within a broader licensing structure for ART agencies. It requires unearned or undisbursed intended-parent funds to be held with an independent, insured, and bonded escrow company or in an insured and bonded attorney trust account, bars nonattorney agencies from holding a financial interest in the escrow company, and reserves disbursement to the attorney or escrow agent. The 2017 Uniform Parentage Act takes a different route, addressing compensation, expenses, and financial obligations through the terms of the surrogacy agreement rather than through an independent-escrow mandate. Michigan’s 2024 Assisted Reproduction and Surrogacy Parentage Act takes a similar approach in enacted law.

Across these different approaches, a common principle emerges: financial safeguards should be clear, independent, and in place before problems arise.

All of these protections serve the same purpose. Each participant should know who is responsible for protecting their interests and should be able to rely on that independence if circumstances change or interests begin to diverge. Putting those boundaries in place at the beginning makes it much easier to address conflict if it later arises.

The limits of the framework

The distinction between legal requirements and professional standards is felt most sharply when someone needs a remedy. A protection grounded in law may provide a basis for legal recourse. A professional or organizational standard may reach only those who are subject to it.

That creates an uneven system of protection. One agency, attorney, or clinic may operate under rigorous standards, while another participant in the same field may fall outside them entirely. Even where safeguards exist, disputes can arise over how they functioned in practice and which state’s law governs the consequences.

Recent interstate disputes, including the McKenna West litigation, show how quickly those questions can become complicated. West was an Alaska resident, the intended parents were in California, and the child was born in Texas. Proceedings followed in multiple jurisdictions.

More important for this discussion, the parties’ public filings offer sharply different accounts of how protections involving independent representation and medical and reproductive decision-making operated during the arrangement. West raised concerns about the relationship between her attorney and the surrogacy agency. The intended parents maintain that both sides were represented by counsel and had the opportunity to negotiate the agreement. The filings also reflect disagreement over provisions addressing termination of pregnancy and later medical decision-making.

Since those filings were made, the Texas Supreme Court denied West’s request for relief concerning the child’s transfer for medical treatment. On September 22, 2026, US Supreme Court Justice Kagan also denied her emergency application to stay the California parentage judgment entered in favor of the intended parents. Neither ruling resolved the disputed questions about independent representation or decision-making raised in the parties’ filings.

Those issues remain contested, and the litigation should not be read as establishing that any particular professional standard was violated. What it does illustrate is how protections that may appear settled at the beginning of an arrangement can be tested when expectations diverge and several jurisdictions become involved.

The interstate dimension compounds the difficulty. Surrogacy arrangements often involve parties, professionals, or treatment in different states, and the protections available in one jurisdiction may not operate the same way in another. Once a dispute crosses state lines, a system built from state law and voluntary professional standards is considerably harder to navigate.

Agency oversight presents another gap. In 2016, the ABA House of Delegates adopted the Model Act Governing Assisted Reproductive Technology Agencies, which proposed a state licensing structure for third-party ART agencies. The ABA identified the lack of professional licensing and regulation for these agencies as a potential source of risk for intended parents, surrogates, and donors.

Some states have since adopted more direct oversight. New York now requires a person or entity operating a surrogacy program in the state to be licensed by the New York Department of Health. Its regulations address insurance, conflicts of interest, informed consent, and compliance with the Gestational Surrogates’ Bill of Rights. Washington, as noted earlier, takes a different statutory approach.

These examples show that greater oversight is possible. New York remains the only state with a licensing system governing surrogacy agencies.

The limits of the current system can also become visible after birth. ASRM contemplates psychological support following participation in a surrogacy arrangement and recommends that the terms and financial responsibility for that support be addressed as part of the arrangement. In practice, access may depend heavily on what was put in place at the outset. That makes advance planning especially important for the period after the pregnancy, delivery, and legal process have ended.

Professional standards remain valuable. Their real strength, however, is measured not by how carefully they are written, but by what happens when they are actually needed.

Accountability in practice

Some accountability is imposed from outside the arrangement. Statutes set requirements and provide remedies, and licensing authorities can discipline professionals who breach their obligations, in serious cases by suspending or revoking a license. These mechanisms give a surrogacy arrangement its outer structure. What they cannot supply is the judgment of the professionals responsible for putting safeguards into practice.

That judgment is put to the test when honoring a safeguard carries a cost. It may mean delaying the process, seeking further evaluation, reconsidering a match, declining a participant, or requiring additional protection before treatment proceeds. For an agency or professional, that cost can include the client.

This is where accountability becomes more than a principle. A safeguard has little value if it shapes decisions only when doing so is easy.

When judgment falls short, standards the field sets for itself need consequences of their own. Membership organizations can hold members responsible through the disciplinary processes their governing rules provide. Clinics can make compliance a condition of treatment and decline to proceed when required safeguards are missing. Contracts can create obligations and remedies within the limits of applicable law. Those consequences will differ depending on the source of the obligation, but a standard with no meaningful response to noncompliance risks being little more than a statement of good intentions.

For intended parents and surrogates, accountability also means understanding the structure around their arrangement, and the professionals involved should be able to explain it. Before anyone moves forward, there should be clear answers to three questions.

Which protections apply to this arrangement? Who is bound by them? What recourse exists if they are not followed?

Those answers may seem less urgent at the outset. They prove their worth later, when something has gone wrong or a warning sign has been missed. At that point, it should be possible to identify who was responsible for applying the safeguard, understand how the decision was reached, and determine what avenue exists for review, correction, or remedy.

From standards to action

Five priorities would help ensure that the field’s standards hold when honoring them is hard.

• Treat screening as a decision-making process, not a checklist. When an evaluation, background check, or disclosure raises a serious concern, professionals need the freedom and willingness to pause, investigate further, or decline to proceed.
• Make disclosure effective across the process. Intended parents, surrogates, agencies, attorneys, clinics, and mental health professionals should receive the information they need to identify risks that may not be visible from one part of an arrangement alone. Information should move between them within the limits of confidentiality, informed consent, and applicable law.
• Preserve professional independence. Legal advice, medical decision-making, psychological support, and control of funds should remain sufficiently separate so that each professional can exercise independent judgment within their own role.
• Create clear pathways for raising and addressing concerns. Participants and professionals should know where to bring a problem, who is responsible for responding, and what happens next when a safeguard appears to have failed.
• Strengthen the legal framework. For the broader legal structure, states can draw on existing statutes, the 2017 Uniform Parentage Act, the 2019 ABA Model Act Governing Assisted Reproduction, and established professional standards. For agency oversight and the management of client funds, the 2016 ABA Model Act Governing Assisted Reproductive Technology Agencies sets out a licensing regime states can adopt.

None of these measures will eliminate every difficult case. Nor should responsible practice depend on the assumption that every participant or professional will always make the right decision. The goal is to build a system in which warning signs are more likely to be recognized, harder to dismiss, and quicker to prompt action.

Trust in surrogacy should not rest on the hope that nothing will go wrong. It should rest on knowing that when something does, the people, standards, and systems surrounding the arrangement are prepared to respond.