The Protecting Children in Surrogacy Act adds a new federal offense that makes it a crime for a "covered sex offender"—anyone required to register under the Adam Walsh Act—to obtain a child through surrogacy or to enter a surrogacy contract as an intended parent when there is a nexus to interstate or foreign commerce. Conviction carries up to 10 years in prison, fines, or both.
The bill also directs that federal courts may not enforce surrogacy contracts in which an intended parent is a covered sex offender and grants federal district courts original jurisdiction over civil actions concerning surrogacy contracts with the same interstate nexus.
This proposal reaches many modern surrogacy arrangements because the statute defines multiple commerce-related triggers (travel, payments, electronic communications, use of interstate equipment). It does not directly alter state parentage law, but it creates a parallel federal prohibition and a mechanism for federal courts to hear surrogacy disputes when commerce is implicated—shifting litigation and enforcement dynamics for fertility clinics, surrogacy agencies, intended parents, and surrogate mothers across state lines.
At a Glance
What It Does
The bill creates 18 U.S.C. §2260B, a federal crime punishing covered sex offenders who obtain a child via surrogacy or enter into surrogacy contracts as intended parents when an interstate/foreign-commerce connection exists. It prohibits federal courts from enforcing surrogacy contracts where the intended parent is a covered sex offender and adds federal jurisdiction over such civil actions.
Who It Affects
People required to register under the Adam Walsh Act (past or present), fertility clinics and surrogacy intermediaries that operate across state lines, surrogate mothers who travel or contract interstate, and federal courts receiving parentage or contract disputes tied to commerce.
Why It Matters
Because modern surrogacy typically involves interstate travel, commercial payments, and online communications, the commerce-based triggers give the statute wide reach. The measure introduces a federal overlay into an area historically governed by state family law, raising compliance, enforcement, and constitutional questions for stakeholders in reproductive services.
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What This Bill Actually Does
The bill adds a new federal criminal offense aimed specifically at people on the national sex-offender registry who try to become parents through surrogacy. It makes two core acts criminal: (1) knowingly "obtaining" a child through a surrogacy arrangement, and (2) entering a surrogacy contract as an intended parent. "Obtain" is defined broadly to include acquiring legal or physical custody, guardianship, or parental rights by formal or informal mechanisms tied to surrogacy.
Rather than sweeping in every surrogacy, the statute reaches cases with a federal commerce connection. The bill lists several common triggers that create federal jurisdiction: interstate or foreign travel by the intended parent, surrogate, or child; use of interstate commerce channels (payments, internet, mail, telephone); use of equipment that moved interstate; or conduct occurring in U.S. territories or maritime jurisdiction.
Because most commercial surrogacy involves payments, clinics, or online contracts, many arrangements will present at least one listed connection.Separate from the criminal prohibition, the bill bars federal courts from enforcing any surrogacy contract involving an intended parent who is a covered sex offender. It also adds a new federal civil jurisdiction statute giving district courts original jurisdiction over civil actions "where the matter in controversy is a surrogacy contract" that meets the same interstate-commerce criteria.
In practice, that creates a path for federal adjudication of contract and parentage claims arising from interstate surrogacy arrangements while leaving other aspects of state family law untouched by text of the bill.The bill’s definitions pull in anyone who "is, or at any time was, required to register" under the Adam Walsh Act, meaning a past registrant remains a covered person for the statute’s purposes. The statutory definition of "female" used to describe a surrogate mother ties the role to egg-producing reproductive anatomy, a choice that could exclude some people who do or would act as surrogates under state laws or agency practices.
Those definitional choices—and the bill’s commerce-driven reach—are the levers that determine who the law actually bars from participating in surrogacy in practice.
The Five Things You Need to Know
The bill creates a federal offense (new 18 U.S.C. §2260B) that carries up to 10 years' imprisonment and fines for a "covered sex offender" who knowingly obtains a child through surrogacy or enters a surrogacy contract as an intended parent when an interstate commerce nexus exists.
A "covered sex offender" is any person who is, or ever was, required to register under section 113 of the Adam Walsh Child Protection and Safety Act (34 U.S.C. 20913), encompassing current and past registrants.
The statute lists seven commerce-related triggers (travel, use of interstate channels, payments, electronic communications, use of interstate equipment, activity in U.S. territories/maritime jurisdiction, or other effects on interstate commerce) that bring surrogacy cases under federal criminal and civil reach.
The bill bars federal courts from enforcing surrogacy contracts where the intended parent is a covered sex offender, while separately granting federal district courts original jurisdiction over civil actions involving surrogacy contracts that meet the statute’s interstate-commerce criteria.
The bill defines 'surrogate mother' and 'female' in anatomical terms—linking the role to egg-based reproduction—which narrows the statutory conception of who may serve as a surrogate and could conflict with state practices involving transgender or nonbinary surrogates.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Short title
Designates the bill as the "Protecting Children in Surrogacy Act." This is the formal title and has no substantive effect on rights or obligations; it signals the bill's stated policy purpose, which courts sometimes consider when construing ambiguous statutory language.
Creates the federal crime for covered sex offenders using surrogacy
Subsection (a) establishes the core criminal prohibition: a covered sex offender who knowingly obtains a child through surrogacy or enters into a surrogacy contract as an intended parent faces fines and up to 10 years imprisonment. The provision criminalizes both the act of taking custody and the act of contracting as an intended parent, meaning pre-birth contracting activity can itself trigger liability when the commerce nexus exists.
Commerce-based jurisdictional triggers
This subsection lists the factual circumstances that give the federal offense reach—travel across state or national borders, use of interstate payment systems, electronic communications (including by computer), use of equipment that traveled interstate, actions in U.S. territories or maritime jurisdiction, or any conduct that otherwise affected interstate commerce. The listing mirrors common federal models for tying family- or sex-related offenses to the Commerce Clause, and practically brings many commercial surrogacy arrangements within federal scope because payments, clinics, and online contracting typically touch interstate commerce.
Federal nonenforcement of surrogacy contracts involving covered registrants
Subsection (c) instructs that a federal court may not enforce any surrogacy contract where an intended parent is a covered sex offender. That is a direct limitation on federal equitable or contract remedies involving surrogacy—federal courts must refuse enforcement—but it does not, on its face, prevent state courts from enforcing such contracts, nor does it itself create a private cause of action or specify collateral consequences beyond nonenforcement.
Key definitions (covered sex offender, obtain, surrogacy, female)
Defines "covered sex offender" as anyone required to register under the Adam Walsh Act at any time (broad temporal scope); "obtain" as acquiring custody, guardianship, or parental rights by formal or informal means; "surrogacy" and "surrogacy contract" as arrangements to conceive and transfer custody; and "female" in egg-producing anatomical terms. These definitions determine both the statute's target population and the persons who count as surrogate mothers, narrowing and expanding scope at different points and creating interpretive hotspots.
Federal jurisdiction over civil surrogacy contract disputes
Adds a new federal jurisdiction statute giving district courts original jurisdiction of civil actions where the dispute concerns a surrogacy contract and meets the interstate-commerce circumstances from Section 2(b). This creates a federal venue for parentage, contract, or enforcement disputes involving interstate surrogacy arrangements and could shift litigation from state family courts into federal courts in many cross-border cases.
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Explore Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Children conceived via interstate commercial surrogacy: the bill aims to prevent individuals on the national sex-offender registry from becoming legal parents through such arrangements, which proponents would characterize as a child-protection benefit.
- Federal prosecutors and law enforcement: the statute supplies a clear federal crime tied to an identifiable registry population and enumerated commerce triggers, simplifying prosecution in cases that meet the listed connections.
- Surrogacy agencies and clinics prioritizing risk management: providers that screen intended parents against the registry and avoid interstate-commercial red flags may use the statute as a basis for stricter vetting policies, reducing liability and reputational risk from registrants.
Who Bears the Cost
- Individuals required to register under the Adam Walsh Act: current and past registrants cannot act as intended parents in interstate surrogacy arrangements without risking criminal exposure, effectively barring them from this path to parenthood when the commerce nexus exists.
- Fertility clinics, surrogacy intermediaries, and legal counsel: these entities must develop compliance protocols (registry checks, documentation of payment flows and communications) to avoid facilitating conduct that could trigger criminal liability, increasing administrative burdens and potential legal exposure.
- State family courts and parents in contested cases: adding federal jurisdiction and a federal nonenforcement rule may complicate parentage adjudications and post-birth enforcement, creating conflicting federal-state outcomes and shifting litigation costs—especially for cross-border or international arrangements.
Key Issues
The Core Tension
The central tension is between a policy goal—preventing people on the national sex-offender registry from using commercial, interstate surrogacy to obtain children—and the competing commitments to federalism, due-process limits, and non-discrimination: protecting children through federal reach may block legitimate, state-governed paths to parentage, sweep in past registrants or marginalized prospective parents, and force private reproductive services to assume policing roles that states or families traditionally manage.
The bill relies on a commerce-based list of triggers to import discrete surrogacy cases into federal criminal and civil reach. Because modern surrogacy frequently involves interstate travel, clinic services that cross state lines, internet communications, and cross-border payments, the statutory triggers will often be met—but the statute does not define the level of nexus required for prosecution or civil jurisdiction beyond the listed examples.
That invites litigation over whether routine business interactions fall within the government's view of "in furtherance of or in connection with" the prohibited conduct.
The definitions create several practical and legal tensions. Treating anyone who "at any time was" required to register as a covered person casts a wide net: someone who registered decades earlier or whose offense would not qualify under current standards could still be covered.
The anatomical definition of "female" for surrogate mothers excludes language that recognizes transgender or nonbinary people and could conflict with state definitions or anti-discrimination laws. The bill also bars federal enforcement of surrogacy contracts but leaves state courts' authority ambiguous, producing the potential for divergent outcomes depending on forum.
Finally, by creating federal criminal penalties tied to family-formation choices, the statute raises questions about federalism, the appropriate means of protecting children, and the risk of driving some arrangements underground—potentially making them harder to monitor for child welfare concerns.
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