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.

Update, October 21, 11:45 am ET: The Supreme Court released a brief order on October 21, which ruled against the Trump administration’s request to deny gender-affirming care to transgender prisoners. The order is two sentences long. It is temporary. And it does not explain the Court’s reasoning. So it is not clear why the Court ruled against Trump or even whether Trump will lose if this case reaches the Court again after it has be fully litigated in lower courts. Justices Clarence Thomas and Samuel Alito dissented. The article below was originally published on October 13.

On the first day of his second term, President Donald Trump issued an executive order requiring the Bureau of Prisons to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” Issued alongside a record 26 other orders that day, it was an unsurprising development, because Trump had made this issue one of the centerpieces of his 2024 campaign.

The fate of that executive order, as well as the US Bureau of Prisons’ (“BOP”) memoranda implementing the order, is now before the Supreme Court in a case called Trump v. Kingdom. And, while this case obviously has high stakes for incarcerated transgender people specifically, the Court’s resolution of this case could potentially have far greater reach — cutting off many cis and transgender people’s access to healthcare while they are incarcerated.

That’s because one of the central questions in Kingdom — though this issue is not yet before the justices — is when the Constitution requires prisons to provide medical care to incarcerated people. In Estelle v. Gamble (1976), the Supreme Court held that the Eighth Amendment’s ban on “cruel and unusual punishments” imposes on the government an “obligation to provide medical care for those whom it is punishing by incarceration.” People in prison, after all, cannot simply drive themselves to the hospital if they get sick. If the prison does not give them adequate medical care, they will suffer untreated and potentially die.

For procedural reasons, the Court is unlikely to opine on whether Estelle requires prisons to provide gender-affirming care to trans people right away. But the question of when the Eighth Amendment requires prisons to provide medical care to incarcerated people is front and center in the Kingdom case, which means the Court could potentially use Kingdom to limit all imprisoned people’s access to healthcare — or even to undercut the Constitution’s protections against cruel and unusual punishments more broadly.

Ironically, this case also arises out of a famous political blunder by pro-trans advocates. In 2019, when then-Sen. Kamala Harris was seeking her party’s 2020 presidential nomination, the ACLU circulated a questionnaire to candidates that asked if they would use presidential authority “to ensure that transgender and nonbinary people who rely on the state for medical care — including those in prison and immigration detention — will have access to comprehensive treatment associated with gender transition, including all necessary surgical care?” 

Harris responded that she would, and also said that she “pushed the California Department of Corrections and Rehabilitation to provide gender transition surgery to state inmates” while she was state attorney general. 

Years later, during his 2024 debate with Harris, Trump claimed that the then-vice president “wants to do transgender operations on illegal aliens that are in prison.” And not long after, his opposition to gender-affirming care for trans people in prison became a key part of his campaign.

It’s unclear why the ACLU thought it was a good idea to shine a light on this issue in 2019 because, at the time, the BOP provided gender-affirming care to people in federal prison. The ACLU — which represents the pro-trans side in the Kingdom case — now argues that transgender people in federal prison have had access to at least some forms of gender-affirming care “since at least 1992.”

Indeed, Trump’s own administration concluded in a 2018 memo that the Bureau of Prisons’ “statutory mandate to provide basic medical and mental health care” to incarcerated people obligated it to provide “pharmaceutical interventions (e.g., cross-gender hormone therapy), hair removal and surgery (if individualized assessment indicates surgical intervention is applicable)” to transgender people in prison if their doctors determined that these interventions are “medically necessary care.”

In any event, regardless of why Trump fixated on cutting off trans healthcare for people in federal prison, Kingdom is now before the Court. That means that the fate of trans people in prison — and, if the Eighth Amendment issue eventually reaches the Court, all incarcerated people — is now in the hands of a Republican Court that is often hostile to trans litigants, and that has, at times, signaled that it wants to drastically roll back the scope of the Eighth Amendment.

What are the legal issues in the Kingdom case?

At least since Estelle, the Court has held that people who are incarcerated are not also sentenced to live and die without medical care. As the Court said in Brown v. Plata (2011), “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

Under Estelle and Brown, transgender people often have a right to gender-affirming care during their incarceration. As the US Court of Appeals for the Ninth Circuit held in Edmo v. Corizon (2019), such a person must show that they have a “serious medical need” for such care — typically by demonstrating that the care was prescribed to them by their health provider. But the Constitution does not permit prisons to deny medically necessary care to incarcerated people.

In Kingdom, the ACLU raised this Eighth Amendment argument in the lower courts, but those lower courts ruled in favor of transgender people in prison on different, much more technical legal grounds.

For over three decades, from at least 1992 to 2025, according to the ACLU’s brief to the justices, the BOP provided at least some gender-affirming care, including hormone therapy, to transgender people. This matters because, when a federal agency changes its policies, a federal law typically requires it to “examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” This explanation often must explain the agency’s justification for “disregarding facts and circumstances” that justified the previous policy.

Both the ACLU and the lower courts that heard Kingdom argue that the Trump administration did not comply with this obligation when it cut off care for trans people in prison. 

Among other things, the district court that heard this case determined that the administration cited “zero evidence from its own medical or mental health care professionals to support its conclusions” against providing transgender healthcare. While the Trump administration argues that providing gender-affirming care makes prisons less safe, the district court also noted that “the government has not cited a single instance of gender-affirming care giving rise to safety concerns despite having provided such care for many years.”

Is this a persuasive legal argument against the Trump administration’s new policy? I think it is. And so did three federal judges that previously heard the Kingdom case. But the fate of trans people in prison is now in the hands of a Supreme Court that rarely rules in favor of transgender litigants, and that has a history of handing down legally incoherent opinions that are inconsistent with the Court’s own precedents, and that also deny legal rights to trans people.

The current Court’s uncertain commitment to the Eighth Amendment

Because the lower courts that heard Kingdom did not rule on the Eighth Amendment question, Kingdom should not currently give the justices an opportunity to roll back Estelle. But, in the likely event that this Court rejects the ACLU’s argument that the Trump administration did not adequately explain its new policy, the case will return to the lower courts and the Eighth Amendment issue will be fully litigated — teeing up the Eighth Amendment question for the justices to decide in the near future.

This issue could arise, moreover, at the exact moment that some justices are pushing for sweeping changes to how their Court understands the term “cruel and unusual punishments.” Indeed, at least some of the Supreme Court’s recent Eighth Amendment precedents suggest that the Republican justices want a wholesale rewrite of the Court’s previous precedents laying out what constitutes cruel and unusual punishment.

Since the mid-to-late twentieth century, the Court has held that, in Chief Justice Earl Warren’s words, the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as certain forms of punishment grow more uncommon, they become more constitutionally dubious.

This “evolving standards of decency” framework is front and center in nearly every major Supreme Court decision interpreting the Eighth Amendment for the last five or six decades, including Estelle.

In Bucklew v. Precythe (2019), however, the Court’s Republican majority seemed to abandon this framework. Although decades worth of pre-Bucklew decisions established that a punishment is unconstitutional if it is considered cruel and unusual today, Bucklew suggested that a method of punishment is unconstitutional only if it “had fallen out of use” at “the time of the founding.” 

Bucklew did list some methods of punishment that fail this test, but they are things like “disemboweling” or “burning alive.”  

Thus, if taken seriously, Bucklew’s new approach to Eighth Amendment cases would dramatically expand the government’s power to impose harsh punishments. The late Justice Antonin Scalia, for example, argued that a Bucklew-like approach to the Eighth Amendment does not prohibit the government from executing most intellectually disabled offenders, and that it does not limit the government’s ability to impose excessive punishments for minor crimes.

In fairness, some of the Court’s post-Bucklew decisions are inconsistent with the framework the Court laid out in that case. So at least some of the justices who joined Bucklew may have since decided that it’s a bad idea to toss out the Court’s entire framework for Eighth Amendment cases. But Bucklew was one hell of a warning shot over the bow of the Eighth Amendment. And the mere fact that the Bucklew decision exists means that advocates for humane punishments must hold their breath any time this Court is asked whether a particular punishment is cruel and unusual.

In the worst-case scenario for people in prison, a case like Kingdom could inspire the Republican justices to overrule — or, at least, drastically limit — decisions like Estelle and Brown. That would mean that all incarcerated people, regardless of their gender identity, could lose access to medically necessary care unless the government decides to give it to them as an act of grace.