For some couples, surrogacy is a miracle: an opportunity to have a child even if they’re unable to conceive one naturally. But it’s also big business. Not only is surrogacy expensive — think six figures — but it’s also largely unregulated. And that last part is becoming a bigger problem. 

Just last week, a California couple was arrested on child abuse charges after it was revealed that they had over 20 children from different surrogate mothers living in a large mansion in Arcadia, a city near Los Angeles. Many of the surrogates are currently fighting for custody through the courts of the children they carried.

The Arcadia case, however, is only the most recent example of how surrogacy can go wrong. Every case is different, but every one illuminates how opaque — and often ripe for abuse or legal issues — the American surrogacy industry is. 

Emi Nietfeld is a reporter at Washington Sun who writes about surrogacy, IVF, and how we build families. She spoke with Today, Explained co-host Noel King about what’s kept lawmakers from regulating the surrogacy industry, the recent high-profile cases bringing these problems to light, and why more regulation doesn’t necessarily offer a straightforward fix. 

Below is an excerpt of their conversation, edited for length and clarity. There’s much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify. 

The United States does not regulate the surrogacy industry seemingly at all. What is going on? Why not?

The lack of federal regulation is both political and financial. Politically, this goes all the way back to the start of IVF. Anti-abortion Republicans were not comfortable with the idea of creating and destroying embryos during IVF, and so they fought against efforts to regulate it. 

People on the left were worried that limiting what kinds of technology you could access would lead to the government controlling who could have families. You still see these arguments today. People who think that IVF is murder don’t want to have any surrogacy. And people on the left don’t want the government saying who can and cannot have a family.

One of the issues raised by the New Yorker story is that there are surrogacy agencies that connect parents and potential surrogates. And it makes you wonder who gets to do that? Who can own and operate a surrogacy agency in the US today?

Anyone.

Oh. Oh no.

Only one state, New York, requires a special license. And everywhere else it’s easier to open an agency than a hot dog stand or a nail salon. This has resulted in the rise of so-called pop-up agencies where businesses come onto the scene, and nobody really knows who owns them or who’s running them. That has led to many people who aren’t experienced, who sign up with these agencies, then feeling like they weren’t prepared or that they were deceived in entering the agreement.

Have we ever tried in the past to regulate this better? Have there been efforts made?

In the 1980s, there was the case of Baby M. That was called traditional surrogacy where Mary Beth Whitehead was the surrogate, but it was also her egg. So the child she delivered was genetically related to her. After she gave birth, she changed her mind. She kidnapped the child, went on the run for several months, and it was a national crisis where this was all over the news. 

Ultimately, a judge in New Jersey ruled that the surrogacy arrangement was unenforceable. Commercial surrogacy arrangements became illegal in New Jersey, and they stayed illegal in New York until 2020.

Part of why regulation looks the way it does is because in 1995, Congress passed a piece of legislation saying that there would be no federal funding for embryo research, which means no federal funding for IVF. That left all of the research, development, innovation up to the free market. And so while that could be seen as an attempt to regulate IVF, it actually meant that those things would no longer be under the government’s purview.

In the US, we’ve seen over the past few years some really high-profile cases that are making lawmakers reckon with the fact that we do not have laws around this. Tell me about some of those cases.

There’s the Mark surrogacy case in California, which is both a really unique case and also illustrates some of the fears around Chinese intended parents coming to the United States to have their kids. This is part of larger geopolitical tensions between the US and China, which are playing out in the surrogacy industry.

There’s the case of Xu Bo, the Chinese video gaming billionaire who is rumored to have more than 100 children via surrogacy in America. His story taps into fears of birth tourism and people from other countries, especially China, coming to the United States to do surrogacy so that their kids are American citizens. 

Republican lawmakers are talking a lot about the idea that people could come from enemy countries, have American citizens, and raise them with the intent that they might one day become spies or president of the United States and be double actors.

In Texas, there’s the case of McKenna West, where she learned at 20 weeks’ gestation that the baby was very sick. The intended parents asked her to get an abortion. She refused to do so. McKenna went to Texas and began fighting for custody to keep the baby while the parents objected. They wanted the baby, and she petitioned the Supreme Court, which declined to hear the case. 

And finally, there’s the case of Kyla Simpson in Florida, whom I wrote about for New York Magazine, and she gave birth for a single dad in China who wasn’t there for the birth. He hadn’t applied for a visa to come to the United States, and when he did apply, he was rejected. Kyla Simpson tried to adopt the kids and is now fighting for custody in a case that’s still working its way through the Florida courts.

These examples are extraordinary, and they point to just chaos. But how common are they? Are they outliers? Is this going on all the time?

Most of the time things go right. In the academic papers around surrogacy, surrogates are usually happy with their experience. Attorneys and surrogates tell me that it’s absolutely beautiful to hand people the baby that they’ve been working hard for. The issue is that when things do go wrong, there’s often not a lot of recourse or there’s a really big legal mess that parents and surrogates have to go through.

I wonder if there is a case against more regulation. As disastrous as some of these examples are, you said that most of the time, it does go right. And it seems like we could get into tricky territory if we start saying who can and can’t have a kid.

Surrogacy is already really time-consuming. It often takes several years, and it’s expensive, usually costing between $150,000 to $250,000 for a single pregnancy. Regulation tends to make things more expensive and take longer. A lot of people fear that if you introduce more requirements and more burdens, surrogacy will become even more out of reach to people. 

There’s also the fear of government overreach. If you ask the government how many kids a gay couple should have, the answer might be zero. And that libertarian streak is driving a lot of opposition to things that most people might consider common sense. 

For example, there’s a lot of talk around whether intended parents should go through background checks before they have kids via surrogacy. Right now, no state in America requires intended parents to go through a criminal background check before having a kid. Critics of regulation say heteros don’t need a background check to have sex in the back of a car and make a baby the old-fashioned way, so it’s unfair to require that from people who need to do surrogacy to have a family. 

Most people can agree that surrogacy could be better regulated, but like many things in our country, it’s almost impossible right now because of politics.

Late last month, the state of Tennessee attempted to execute Christa Pike, a woman who has been on death row for decades after killing a classmate as a teenager. 

The execution failed: Pike survived two doses of the lethal injection drug pentobarbital, making her the first person ever to do so.

The botched execution comes at a strange moment for capital punishment in America. Support for the death penalty has been declining for decades. And for a long time, the number of executions was falling, too. But since 2021, executions have been increasing again. The recent surge has been driven largely by one state: Florida.

According to Pamela Colloff, who covers the criminal justice system for ProPublica and wrote about Florida’s use of the death penalty for New York Times Magazine this summer, 40 percent of the executions conducted in the US last year were in Florida.

“There are so many things that make the administration of the death penalty interesting and unique in Florida,” Colloff explained on a recent episode of Vox’s The Gray Area podcast. “Among active death penalty states right now, Florida is unique in that one person determines, from the hundreds of men on death row, who will receive an execution date, and what that execution date is.”

I spoke with Colloff earlier this month following Pike’s failed execution about what happened in Tennessee, what’s driving Florida’s recent zeal for executions, and why victims’ families are often unsatisfied by the death penalty process. 

Below is an excerpt of our conversation, edited for length and clarity. There’s much more in the full podcast, so listen to The Gray Area wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify. (This interview also appeared more recently on Vox’s Today, Explained podcast.)

We’re taping shortly after news came out that a woman in Tennessee who was on death row, authorities attempted to put her to death. They gave her two doses of lethal injection medication, and she survived. 

How much of the decline in the use of the death penalty has to do with, in your estimation, people feeling like there’s no way to do it that’s humane? 

This is the second botched execution in Tennessee this year, just to give you a sense of things. This is more common there than in other states. They’ve changed their drug protocols and we don’t know a lot about what went wrong with Christa Pike. In May, it was an issue with accessing veins, which can be an issue with lethal injection. 

I think it’s also important for people to remember that we had the electric chair as the method of execution through the ’80s and into the ’90s in some places. While [lethal injection] is considered a far more humane, quote-unquote, way to do this, we can see that nothing is perfect. 

I will say that while the issues of botched executions are very important, and I think there are some other ones coming up to be concerned about, I am more interested in how it is that other errors are made, that other people end up with the ultimate punishment when that perhaps was not the right punishment for what occurred.

You’ve also written that death penalty convictions are just expensive, right? And on top of that, DNA evidence has made it clear that many of the people who were being convicted were not guilty, or there wasn’t strong enough evidence to convict them. How do you think about that mix of factors?

Florida, which I’ve spent a lot of time writing about, is the leading place in America by a mile in terms of the number of executions, and has a very large death row. Florida’s also the leader in wrongful death row convictions. Just to give you a sense of things, Florida holds the distinction of 30 death row exonerations.

What that means is in the modern era — the past roughly 50 years — there have been 30 men who were given dates of execution who now walk free. And for anyone who pays any attention to how the criminal justice system works and how incredibly difficult it is to overturn a wrongful conviction, if we have 30 people in Florida who have that distinction, we know that there are many more.

What’s going on in Florida? When did you realize that something was different there?

It really ramped up last year. Last year, Florida executed 40 percent of the people who were executed in the US in the last calendar year. In this year, there have been 16 men who’ve been executed in Florida so far. 

Just to give you a comparison, Texas is the next state with the highest number of executions, and they’ve executed six men in that time. We already have outlier states, primarily southern states, and then we have Florida being the ultimate outlier.

There are so many things that make the administration of the death penalty interesting and unique in Florida. The thing that fascinated me the most is, among active death penalty states right now, Florida is unique in that one person determines, from the hundreds of men on death row, who will receive an execution date, and what that execution date is.

Who is it?

Gov. Ron DeSantis. I went back and looked at what were the patterns here, what were the things guiding Gov. DeSantis’s thinking in setting these dates, and was fascinated to see and very troubled to see that there are a number of men who’ve been there so long.

They’ve been there since the 1970s. These are men who were convicted when Gerald Ford was president, just to make this real to people. But the dates are not being set among the men who are what are called death-eligible, meaning that they’ve gone through all their appeals. They aren’t being done chronologically.

There’s no rhyme or reason to the process. And so there’s this speculation game among victims’ families, prisoners, their advocates about who will be next. And men can sit there on death row for decades with that hanging over them, and that is a Florida phenomenon.

You wrote about Florida’s death row turning from something like a purgatory where people stay for a long time into something closer to an assembly line, right?

I was so struck by the fact that in Florida, in order to have this pace of executions, there were people who were receiving their dates 30 days, sometimes fewer, from their execution dates. 

Just to give people a sense of why that is unusual, there are so many things that kick into gear when a death warrant is written. There are numerous legal maneuvers and next steps that happen in the courts. To give you a quick example, there was one defendant in Florida this spring who, five days before he was scheduled to be executed, was finally granted the ability to test DNA evidence in his case that had gone untested.

He had great lawyers who didn’t sleep to make that happen, but that it came as close as five days to his execution date. I think that should give us all pause about how fast this is moving. 

You have multiple people in the queue at the same time. There’s a place — a different unit than Florida’s death row — that you’re taken to once you get your date, called death watch.

Tell me about death watch. What does it look like and what does it feel like?

Death watch is roughly 30 feet from the execution chamber. There are three cells. When you receive your date, you are taken from death row to death watch where you’re put — I don’t want to say solitary because if there are one or two other men who are held there — but you’re in a far different situation than you would be on death row where there are guards and other people you know.

From that point forward, there are roughly 30 days where you are held within steps of where this will take place. To me, it was chilling that when I was doing my reporting in the spring on the story that I published this summer, all three cells were filled, and as soon as one person was executed, the pattern was that often the next day a new death warrant would be signed, and there would be a new person in place.

Why do they do that? Why do they put these people next to the place where they’ll die?

That’s one of the many questions I had about that. We talk about not wanting to have cruel and unusual punishment. Our Constitution does not uphold that. But it’s such a unique kind of mental torture, I think, to be 30 feet from where you’ll be put to death.

The other thing I was struck by was the waiting aspect. If you’re on death row, again, you always have this hanging over you. I talked about the way in which, when you’re in that kind of sensory deprivation, you become highly attuned to sounds and smells and things like that.

I interviewed someone who’s not on death row anymore, whose sentence was commuted, who talked to me about recognizing that jangle of keys and the steps that this group of people who come to deliver the death warrant take, and knowing that someone is about to be served with a death warrant, but not knowing, “Is it me? Is it the guy next to me? Is it someone down the hall?”

I just want to say, I understand that there’s a counterargument to all of this, which is that these are people who most often committed terrible crimes. Their victims did not know when they were going to be killed.

I do think, however, as a state that administers this thing, there has to be a rhyme or reason to this. Otherwise, you have total chaos, including for victims’ families, who never know. Are they going to wait one month? Are they going to wait 15 years? They don’t know.