The History of Surrogacy: International Origins, Developments in the United States, and California Today

“Sarah Leading Hagar to Abraham" Source: The Leiden Collection

Ancient Roots and Origins of Surrogacy

Surrogacy is both an ancient idea and a modern medical achievement. What began as a practice rooted in family and tradition has become a highly structured process guided by science, law, and ethics. To understand how we arrived here, let’s trace surrogacy’s history internationally, in the United States, and in California, one of the main locations that Babymoon Surrogacy is based.

Surrogacy-like arrangements have appeared throughout history and across cultures. Anthropologists and legal historians have identified references in religious texts like the Bible, and found similar practices in ancient Mesopotamia and other societies where kinship, lineage and family continuity were central social concerns. Historically, surrogacy was often used to preserve bloodlines or address infertility in the absence of medical interventions. One of the most frequently cited early examples of surrogacy is in the book of Genesis with the case of Sarah and Abraham whose child was carried by another woman. However, these early forms of surrogacy were structured much differently than our modern idea of assisted-reproductive surrogacy.

By the 20th century, advances in reproductive medicine like fertility treatments such as in vitro fertilization (IVF) and changing social attitudes about family allowed for 20th century contemporary surrogacy models known as traditional and gestational surrogacy. All of this led to the first officially recognized surrogacy arrangements being performed in 1991.

Surrogacy in the United States

In the United States, there were two key turning points in the field of surrogacy that helped it evolve into what it is today: (1) the rise of legal contracts to govern agreements between intended parents and surrogates, and (2) the shift from traditional surrogacy toward gestational surrogacy made possible by IVF.

1970s (The Rise of Surrogacy Contracts): The first formal contracts between surrogates and intended parents were drafted in Michigan. This sparked new ethical and legal debates about compensation, enforceability, and parental rights.

1988 (Baby M and the Shift to Gestational Surrogacy): The Baby M case (1988) was a landmark New Jersey court case where a traditional surrogate, who was also the baby’s genetic mother, sought custody despite a surrogacy contract, leading the court to void the contract but award custody to the intended parents. This decision exposed the legal and ethical complexities of traditional surrogacy and ultimately shaped surrogacy laws in the United States. This also prompted many states to favor gestational surrogacy with clearer legal protections.

1970s and 80s (Medical advances): Around the same time, in vitro fertilization (IVF) allowed embryos to be created outside the womb and transferred to a surrogate with no genetic connection. This gave rise to gestational surrogacy, now the most common form.

Varied Surrogacy Laws Across States: Because there is no federal law on surrogacy, each state sets its own rules. Some states explicitly permit and regulate compensated surrogacy, others restrict it. This patchwork has driven intended parents to seek out surrogate-friendly states like California. 

California’s Leadership in Surrogacy

California is often considered the “gold standard” for surrogacy because of its supportive legal framework and inclusive approach.

1993 (Johnson v. Calvert Case in California): Johnson v. Calvert (1993) was a California Supreme Court case involving a gestational surrogacy arrangement. In the case, the surrogate, who carried an embryo created from the intended parents’ egg and sperm, initially sought to keep the baby after birth. The intended parents argued that they were the legal parents based on their intent to have and raise the child. The California Supreme Court ruled in favor of the intended parents, establishing that the “intent to parent” is the decisive factor in surrogacy law. This landmark case set California apart as a leader in surrogacy law.

Pre-birth parentage orders (PBO): California courts allow intended parents to secure their parental rights before birth, ensuring clarity on the birth certificate and reducing post-delivery uncertainty.

Contract standards: Independent legal representation, notarized agreements, and use of escrow for compensation are standard practice in California, providing transparency and protection for both surrogates and intended parents.

Inclusive of all families: California welcomes diverse family structures including single parents, same-sex couples, and international intended parents, making it a global hub for surrogacy.

Over the past decade some formerly restrictive states have also modernized their laws, following in California’s footsteps. New York legalized compensated gestational surrogacy with the Child-Parent Security Act in 2020 (effective 2021), and other states have revised or clarified statutes. Michigan, for example, moved recently to decriminalize compensated agreements after previously prohibiting them. These legislative changes reflect both evolving social attitudes and practical needs for clear, protective law for surrogates and intended parents.

At Babymoon Surrogacy, we are proud to be based in California, where the legal protections and supportive framework allow us to guide both surrogates and intended parents with confidence. Although we work with all states and countries that permit surrogacy. Our team ensures every contract meets state standards, offers access to experienced legal partners, and provides emotional support throughout the journey.

What the history means for intended parents and surrogates today

Surrogacy’s history is a reminder that law, medicine, and social values evolve together. For intended parents and surrogates today, the history underlines why careful screening, clear contracts, independent legal counsel, and knowledgeable medical teams matter. It is also important to remember that surrogacy laws today vary widely across international and state borders.