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Unpublished Paper
Commercial Surrogacy Agreements and the Commerce Clause: Creating Certainty through Federal Regulation
ExpressO (2011)
  • Robert K Ochodnicky

There is a great deal of evidence that surrogacy as an industry needs to be regulated, but how and by whom? While family law issues are historically handled at a state level, commercial surrogacy companies have created a mercantile industry within the family law context. These companies operate with profit as the ultimate goal. This sets them apart from other areas of family law and creates an opportunity for the Federal Government to provide the regulation the industry desperately needs. Because commercial surrogacy companies provide a service for a fee and often operate over state lines, Congress should be able to regulate the industry under their commerce clause power. This paper will first discuss the judicial results of this lack of legislation and the reasoning behind why more certainty in the law regarding surrogacy agreements is necessary. Second, this article discusses the business of surrogacy and explains why it should be considered a commercial industry eligible for regulation under Congress’ Commerce Clause power. Third, it will discuss the history of the Commerce Clause and how it has been used to achieve goals that had an arguably more tangential relationship with interstate commerce than the commercial surrogacy industry. Fourth, will discuss how Congress has already enacted legislation regarding other areas of family law, proving that family law is not always a state issue that is off-limits to the Federal Government. Finally, this article will conclude with a discussion of the specifics of the regulations Congress should promulgate in order to bring more certainty to this unreasonably unregulated area of law.

Publication Date
March 24, 2011
Citation Information
Robert K Ochodnicky. "Commercial Surrogacy Agreements and the Commerce Clause: Creating Certainty through Federal Regulation" ExpressO (2011)
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