HR-9132-119
Referred to the House Committee on the Judiciary.
Sponsored by Scott Perry (R-PA)
What it does
This bill would void and make unenforceable any surrogacy contract between a U.S.-based surrogate mother and a foreign national prospective parent, unless the foreign national is legally married to a U.S. citizen or lawful permanent resident. It would impose criminal penalties — up to 10 years in prison and/or fines — on surrogacy brokers who knowingly or recklessly facilitate such contracts. It would also bar foreign national parents of children born under these voided contracts from using that parentage to obtain any U.S. immigration benefits, and would direct state courts to determine custody of affected children based solely on the child's best interests.
Who benefits
U.S. surrogate mothers who supporters argue are protected from exploitation by foreign commercial interests. Children born under such arrangements, whose custody would be decided by a best-interests standard rather than a contract. U.S. citizens concerned about national security risks from foreign nationals obtaining U.S.-citizen children. Domestic surrogacy agencies that serve U.S.-based intended parents, who would face less competition from international brokers. State family courts, which would gain sole authority over custody determinations in these cases.
Who is hurt
Foreign nationals — including those from allied countries — who have entered or plan to enter surrogacy arrangements with U.S. surrogates. U.S. surrogate mothers who voluntarily choose to carry children for foreign intended parents and would lose that option. Surrogacy brokers and agencies whose international business would be criminalized. Children born under voided contracts, who could face legal uncertainty about custody and parental relationships. Mixed-status couples where one partner is a foreign national not yet a permanent resident. International fertility clinics and legal professionals who coordinate cross-border surrogacy arrangements.
Supporters argue
Supporters argue that international commercial surrogacy creates measurable national security risks: children born to foreign nationals — including those from adversarial states — automatically receive U.S. citizenship, can eventually sponsor their foreign parents for visas, and may access sensitive government positions. They point to the bill's finding that over 107 Chinese-owned surrogacy agencies are currently operating in Southern California as evidence of a coordinated effort to exploit U.S. birthright citizenship. They further argue that many peer democracies — including Canada, Germany, France, and Australia — have already banned international commercial surrogacy, and that the U.S. is an outlier in leaving this practice unregulated.
Opponents argue
Opponents argue that the bill sweeps far beyond any documented national security threat by banning surrogacy contracts with nationals of all foreign countries, including close allies, rather than targeting specific adversarial states. They contend that voiding existing and future contracts creates serious due process concerns for surrogate mothers, intended parents, and — most acutely — children who may be left in legal limbo with no enforceable custody arrangement, potentially harming the very children the bill claims to protect. They also argue that the bill's immigration benefit restriction effectively penalizes U.S.-citizen children for the circumstances of their birth, raising questions under the Fifth Amendment's Due Process Clause.
Constitutional context
Congress has broad authority over immigration and naturalization under the Naturalization Clause (Art. I, §8, cl. 4) and the Necessary and Proper Clause. However, the bill's provision stripping U.S.-citizen children's foreign national parents of immigration benefits based solely on the method of the child's birth may raise Fifth Amendment Due Process concerns, as courts have recognized that non-citizens inside the United States retain basic due process protections (Zadvydas v. Davis, 2001). The Citizenship Clause of the 14th Amendment also bears on whether Congress can indirectly limit the practical effect of birthright citizenship by restricting the immigration rights of a citizen child's parent.
Checks and balances
Congress would gain new authority to regulate private surrogacy contracts and criminalize broker conduct; the Executive Branch (DOJ) would enforce criminal penalties; state courts would retain authority over child custody determinations; and federal courts could review constitutional challenges to the immigration benefit restrictions and contract-voiding provisions.
Historical precedent
No directly analogous federal legislation exists; surrogacy has historically been regulated exclusively at the state level, making this bill a first federal entry into the domain of surrogacy contract law.