A Third of the U.S. Surrogacy Market Is Foreign. Almost Nothing Above It Is Federal.

The Growth Isn’t Mostly American

Gestational surrogacy in the United States more than doubled in five years. The usual explanation is rising domestic demand. The data says otherwise.

Research published in Fertility and Sterility in April 2024, drawing on the Society for Assisted Reproductive Technology’s national reporting system, found that of 40,177 embryo transfers to a gestational carrier between 2014 and 2020, 32% were for intended parents who were not U.S. residents. That share rose from 22.0% in 2014 to 39.8% in 2019 before falling to 31.8% in 2020, a drop the authors attribute to pandemic travel restrictions.

Break the growth apart and the pattern sharpens. Cycles for U.S. intended parents grew from 2,758 in 2014 to 4,905 in 2019. Cycles for international intended parents grew from 780 to 3,240 over the same period. That is a 78% increase in American demand against a 315% increase in foreign demand.

Of the roughly 4,600 additional transfers performed between 2014 and 2019, about 53% were for parents who do not live in the United States. More than half the growth in American surrogacy came from outside the country. Applying the same study’s outcome data, non-resident parents accounted for roughly 34% of gestational-surrogacy live births across the full period. Both figures are NexfinityNews calculations from the study’s published tables.

The origin countries explain why. International intended parents came most often from China (41.7%), followed by France (9.2%), Spain (8.5%), the United Kingdom (5.3%) and Israel (5.0%). Commercial surrogacy is illegal in China, France and Spain. In the United Kingdom it is permitted only on an altruistic basis and surrogacy agreements are not enforceable, requiring intended parents to apply to a court after the birth.

The destination is equally concentrated. Three-quarters of international cycles ran through clinics in just two states California at 64.8% and Oregon at 10.5% while cycles for American parents were spread far more evenly, led by California at 24.5% and Texas at 10.0%.

What Washington Actually Checks

Embryos created overseas can be shipped into the United States lawfully, and the federal government does inspect them. But it inspects them for one thing.

Under 21 CFR Part 1271, the Food and Drug Administration treats embryos, eggs and sperm as human cells, tissues, and cellular and tissue-based products the same regulatory category as donated corneas or bone. The framework exists to stop the spread of communicable disease. Importers must notify FDA at entry under § 1271.420, establishments handling the material must register, and where donor gametes are involved, each donor must clear a donor-eligibility determination: a medical and social history, a physical exam, and infectious-disease testing.

In simple terms: Washington asks whether the embryo carries HIV, hepatitis or syphilis. It asks nothing else.

There is a large carve-out even on that narrow question. Section 1271.90 exempts reproductive tissue donated by a sexually intimate partner of the recipient, so embryos created from the intended parents’ own eggs and sperm face almost none of the screening burden. Donor eggs or donor sperm trigger the full requirement and international cycles in the Fertility and Sterility study used donor eggs far more often than domestic ones, 67.1% against 43.5%.

The friction shows up at the lab bench. Required tests must use FDA-licensed, approved or cleared donor-screening assays, run according to the manufacturer’s instructions, within tight timing windows around retrieval. Foreign clinics generally cannot obtain those assays. The industry workaround, as described by U.S. clinics and agencies that handle international intake, is to ship FDA-compliant test kits abroad before retrieval, or to attempt retrospective remediation afterward which cannot recover a missed timing window. Acceptance is then decided clinic by clinic, not by any federal adjudicator.

And when an embryo fails? A 2016 FDA rule added § 1271.90(b), permitting embryos originally created for a specific couple and later donated to be used even where donor-eligibility requirements were not met, provided the material is labeled. The federal answer to a non-compliant embryo is disclosure, not prohibition.

What Washington Does Not Touch

Everything the West case was actually about falls outside that framework.

No federal law establishes who the legal parents of a child born through surrogacy are. None governs whether a surrogacy agreement is enforceable, what may be written into it, or what happens when the parties disagree mid-pregnancy. None addresses custody, embryo ownership in a divorce, compensation limits, who may contract as an intended parent, or how many embryos may be transferred. States hold the primary role in regulating the providers involved, according to the Congressional Research Service.

The rest of the federal footprint is thin. The Fertility Clinic Success Rate and Certification Act of 1992 requires clinics to report outcome data the source of the statistics above but reporting is not oversight. CLIA certifies the laboratories. That is the list.

Congress has spoken directly about embryos in one recurring place, and it is not about parentage either. An appropriations rider, first attached to the fiscal 2016 spending law and renewed in every FDA spending bill since, bars the agency from accepting an application for clinical research in which a human embryo is intentionally created or modified to carry a heritable genetic modification. It runs one year at a time: in 2019 a House subcommittee dropped it before the full committee restored it by voice vote. The House’s fiscal 2027 bill carries it again.

The clearest federal statement about human embryos is a temporary spending condition about gene editing.

Run the West Case With Foreign Parents

Nationality is not a bar to a California parentage judgment. Foreign intended parents routinely obtain pre-birth orders in California, which is a principal reason so many international cycles run through the state. The order issues, the surrogate is not the legal parent, and a Texas court owes that judgment full faith and credit. West would almost certainly still have lost the parentage fight.

Nearly every other lever in the case, however, works differently.

The damages claim runs one direction. The breach claim against West functions because both sides are reachable by American courts. Foreign intended parents could still sue a U.S. surrogate here; the escrow, agency and clinic are all domestic. A surrogate trying to recover against foreign parents would first have to serve them abroad under the Hague Service Convention, a process measured in months, and then enforce any judgment in a country that may not enforce U.S. money judgments. The contract’s penalties point at the surrogate; her remedies point at people a U.S. court cannot easily reach.

The medical care order has a border. Texas Attorney General Ken Paxton’s intervention produced an emergency order requiring Dallas hospitals to treat a child not yet born. That order worked because the hospitals were in Texas. Nothing in a state court’s authority reaches a hospital abroad. West’s stated fear was that the child would be moved to California for hospice; with foreign parents, the equivalent is a flight, and the only treaty addressing it the 1980 Hague Convention on international child abduction applies to wrongful removals between contracting states and creates no general right to supervise a child’s care overseas.

The jurisdictional defense gets stronger. West argued California lacked personal jurisdiction over her and that the contract’s forum clause pointed to Alaska. With Californian parents, the state at least had a resident party. With foreign parents, California’s connection would be the clinic and little else. That argument has not been tested on these facts; our reading of it is analysis, not law.

Citizenship Is No Longer Settled

This variable did not exist a year ago.

A child born in Texas is a U.S. citizen under the Fourteenth Amendment, and the Supreme Court reaffirmed that in Trump v. Barbara on June 30, 2026, holding that children born to parents unlawfully or temporarily present are citizens at birth.

Five weeks later, on Aug. 6, the President signed Executive Order 14418. It directs federal agencies not to issue or accept documents recognizing citizenship for a child when neither parent is a citizen and any of several conditions applies including when the parents “engage in a commercial transaction with a surrogate present in the United States” to give birth.

In simple terms: for foreign intended parents, the order treats paying a U.S. surrogate as grounds to deny the child a U.S. passport.

On Sept. 2, U.S. District Judge Deborah Boardman in Maryland enjoined enforcement against a certified class of children, finding the order almost certainly unconstitutional as applied to them. Government lawyers told the court the order applies only prospectively; the judge found its text supports the opposite reading. Federal agencies then issued implementation guidance on Sept. 4 and 5 describing it as prospective only. The order has not been implemented, and the government is expected to appeal.

The injunction may not reach surrogacy at all. The protected class is defined by the immigration status of the child’s mother: children whose mother was unlawfully or temporarily present and whose father was not a citizen or permanent resident. In a gestational surrogacy birth, the woman who gives birth is typically a U.S. citizen or resident, while the legal mother under a state parentage order is someone else. The opinion does not say which woman counts. The court also expressly declined to decide whether the order’s individual carve-outs the surrogacy provision among them are constitutional.

By our reading, a child born to a U.S. surrogate for foreign intended parents may sit outside the injunction’s protection, a question no court has answered. Put that child in a West-type dispute: a newborn the federal government declines to document as a citizen, whose parents’ home country may not recognize them as his parents and therefore may not recognize him as its national either. That scenario is our analysis of where the pieces point, not a documented case. Every piece of it now exists.

Nothing Above It Resolves This

There is no international framework to fall back on. A Hague Conference on Private International Law working group spent 2023 through 2025 drafting provisions for a convention on recognizing foreign parentage judgments. In March 2026, the conference’s governing council decided not to move to drafting a convention, leaving the question to be revisited later; the next scheduled progress report is due before its 2028 meeting.

A U.S. parentage order therefore travels abroad on comity discretionary recognition rather than obligation. Some countries accept it directly and others require additional proceedings. French courts have moved toward recognizing parentage for citizens who completed surrogacy lawfully abroad, but that is one country’s case law, not a rule.

Conclusion

The West case has been read as a story about abortion. Strip out the clause no court would have enforced and what remains is a jurisdictional machine that barely held together with all-American parties.

Full faith and credit made the California judgment portable. A state attorney general could compel treatment. A damages claim could be served and collected. A court could order the child to stay put.

Every one of those levers is constitutional, statutory or geographic. Every one of them stops at the border. The federal government cleared the biology and left the rest to fifty states and a contract.

Key Takeaways

Non-resident intended parents accounted for 32% of U.S. gestational-carrier cycles from 2014 to 2020 and, by NexfinityNews analysis, about 53% of the market’s growth from 2014 to 2019.
FDA regulates imported embryos only as tissue, and only for communicable disease. Embryos made from the intended parents’ own gametes are largely exempt even from that.
No federal law governs parentage, custody, contract enforceability or embryo ownership in surrogacy.
With foreign intended parents, the damages remedy runs one direction, a state court’s medical-care order loses force once the child leaves the country, and recognition abroad depends on comity.
Executive Order 14418 names commercial surrogacy among grounds to deny citizenship documents when neither parent is a citizen. A Sept. 2 injunction protects a class defined by the mother’s status, which may not cover surrogacy births.
The Hague Conference declined in March 2026 to begin drafting a convention on recognizing foreign parentage judgments.