How Legal Loopholes Let Predators Exploit the Global Surrogacy Industry

In the quiet suburbs of Pennsylvania, the legal machinery of “Big Fertility” recently accomplished what the adoption system is designed to prevent: It handed a newborn baby to a convicted predator. No law was broken. In August, the name Brandon Keith Mitchell, 39, attracted a global outcry. Mr. Mitchell, a registered sex offender, didn’t have to pass a rigorous home study. He didn’t have to sit through months of psychological vetting or open his criminal history to a social worker. While a couple seeking to adopt a child must undergo a forensic level of scrutiny, with the inspection of everything from their floor plans to their darkest personal secrets, commercial surrogacy often operates on the logic of a high-end service contract. For Mr. Mitchell, the system worked with chilling efficiency. Yet, the same man had been charged in 2016 with unlawful contact with a minor and related sex offenses after prosecutors said he exchanged sexually explicit messages with a 16-year-old student while working as a high school teacher in Pennsylvania. Mr. Mitchell pleaded guilty, was sentenced to jail time, lost his teaching license, and was required to register as a Tier 1 sex offender. A Dutch national’s recent trial in the Netherlands on charges of sexually abusing a toddler conceived through surrogacy has also laid bare the vulnerabilities in an industry operating with limited oversight. The case gripping the Netherlands involves a 40-year-old man who, prosecutors allege, “engaged in sexual acts” with a toddler he had acquired via surrogacy in a previous gay relationship. He is also accused of taking hundreds of nude photographs of the young girl and her friends while bathing or on the toilet, none of which, the plaintiff argues, were taken with ill intent. Prosecutors called for a four-year prison sentence; however, the case raises questions that extend far beyond one predator’s crimes: What gaps in the surrogacy industry need to be closed?Limited Guardrails Unlike domestic adoption in most developed nations, which typically requires home studies, background checks, financial verification, and psychological evaluations, private international or domestic surrogacy arrangements often require nothing more than payment. Laws vary by state and country, and the industry frequently operates in a legal gray zone, with different regulations — or none at all — depending on jurisdiction.While reputable surrogacy agencies typically conduct background checks and screenings of intended parents, these protections generally are agency policies rather than legal requirements. Unlike adoption, surrogacy arrangements face no mandatory government oversight, allowing intended parents to bypass agency screenings entirely through independent arrangements or less scrupulous agencies.“There is no unified international system that requires screening of intended parents in cross-border surrogacy arrangements,” the executive director of the Center for Bioethics and Culture, Kallie Fell, tells The New York Sun. “International surrogacy often operates outside of adoption protections.”This regulatory gap, experts say, leaves children — and sometimes surrogate mothers — vulnerable to exploitation. “In practice, the only universal requirement in international commercial surrogacy is the ability to pay,” Ms. Fell says. “Unlike domestic adoption, there is no consistent mandate for background checks, home studies, or child-welfare assessments; financial capacity often functions as the primary gatekeeping mechanism.”The United States is one of the few developed nations where commercial surrogacy operates with minimal federal oversight. Individual states set their own rules, creating a patchwork of regulations that range from comprehensive to nonexistent. Most other developed nations have outright bans on commercial surrogacy. In the United States, Some states require psychological screening and legal representation for surrogates; others impose no requirements at all. For international clients, the variation creates opportunities to jurisdiction-shop, seeking out the loosest regulations and the fewest questions.CommercializationThe financial incentives driving the industry are substantial. Surrogacy agencies, fertility clinics, lawyers, and brokers all profit from matching intended parents with surrogates. For agencies, each successful arrangement can generate tens of thousands of dollars in fees. The business model rewards volume and efficiency, not careful vetting.Industry defenders argue that the majority of intended parents are loving couples or individuals facing infertility, for whom surrogacy offers a path to building a family that would otherwise be impossible. They also frame the practice as a form of reproductive freedom for women who choose to serve as surrogates, emphasizing the financial compensation as a legitimate means of empowerment. Proponents contend that with proper legal frameworks, counseling, and medical oversight, surrogacy can be a mutually beneficial arrangement that respects the rights and desires of all parties involved.Critics, however, counter that the profit motive inevitably creates pressure to prioritize transactions over safeguards.The international dimension, some say, compounds the problem. When surrogacy arrangements cross borders, they cross legal jurisdictions, making oversight even more difficult. A baby born in California to a surrogate is transferred to intended parents from Europe or Asia after substantial legal documentation is completed, including court-ordered parentage, a United States birth certificate, and a passport. International parents typically remain in America for several weeks post-birth to complete these legal requirements. However, once the child leaves U.S. soil, American authorities conduct no follow-up regarding the child’s welfare or circumstances.Ongoing Controversy Legal experts and child safety advocates increasingly argue that some surrogacy arrangements meet the definition of human trafficking under international law. The United Nations Palermo Protocol defines human trafficking as the recruitment, transportation, or receipt of persons through means including deception or abuse of vulnerability for exploitation. When vulnerable women are recruited to bear children for payment, and when those children are transferred to buyers without verification of their safety, the line between surrogacy and trafficking blurs.“Under international law, a transaction may qualify as the sale of a child when a child is transferred in exchange for payment,” Ms. Fell observes.The Optional Protocol to the Convention on the Rights of the Child defines such transactions as involving three elements: the transfer of a child, remuneration or other consideration, and a causal link between the payment and the transfer. “In commercial surrogacy arrangements, these elements are often present,” Ms. Fell says. “A child is transferred to intended parents, significant sums of money change hands, and the payment is directly tied to the relinquishment of the child.”For critics like Ms. Fell, the line between surrogacy and child trafficking can become alarmingly thin when financial incentives drive the process.According to Ms. Fell, commercial surrogacy can turn children into the end product of a “paid transaction.”“When money is exchanged, and custody is transferred, the legal threshold for sale is often crossed, even if it’s politically uncomfortable to acknowledge,” she explains. Several countries have, as a result, banned commercial surrogacy entirely. France, Germany, Italy, Spain, and China prohibit the practice, as do many other nations. Some permit altruistic surrogacy with strict regulations but forbid commercial arrangements. Yet the global nature of the industry, and the prevalence of private surrogacy, means that citizens of countries with bans can often travel to jurisdictions where surrogacy is legal and unregulated.AccountabilityAs surrogacy crosses borders, legal loopholes and limited oversight raise urgent questions about who is ultimately responsible for the child’s safety and well-being. Should agencies that facilitate arrangements be held liable when children are placed in dangerous situations? Should fertility clinics that provide medical services be required to verify that intended parents have been adequately screened? Should lawyers who structure contracts and establish parental rights bear responsibility for ensuring child welfare?“Absolutely, every single player in the industry should bear legal liability,” Ms. Fell says. “Surrogacy agencies, fertility clinics, and attorneys act as gatekeepers, yet they are largely shielded from responsibility when harm occurs. In other areas of medicine and adoption, intermediaries are held accountable for negligent placements. The same standards should apply when children are harmed in surrogacy arrangements.”

How Legal Loopholes Let Predators Exploit the Global Surrogacy Industry

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