Protecting Children in Surrogacy Act
- Sponsor
- Rep. Mace, Nancy [R-SC-1]
- Committees
- Judiciary Committee (primary)
- Last action
- Jan 30, 2026
Bottom line
The bill aims to protect children by federally barring registered sex offenders from using surrogacy to gain parental rights, establishing criminal penalties and federal jurisdiction.
What it actually does
This bill establishes a federal prohibition preventing individuals listed on the National Sex Offender Registry from obtaining children through surrogacy or entering into surrogacy contracts as intended parents. It imposes criminal penalties, including fines and up to 10 years imprisonment, for violations. Additionally, it grants federal district courts original jurisdiction over civil actions related to surrogacy contracts under specific interstate commerce conditions and prohibits federal courts from enforcing contracts where an intended parent is a covered sex offender.
Proponents argue
Proponents argue that this bill is a crucial child protection measure, closing a potential loophole that could allow individuals with a history of child sexual offenses to acquire children through surrogacy, thereby safeguarding vulnerable children from potential harm. They would emphasize the importance of preventing known offenders from gaining legal custody of children, asserting that the federal government has a compelling interest in protecting minors across state lines.
Opponents contend
Opponents might argue that while the intent to protect children is laudable, the bill could face constitutional challenges regarding federal overreach into family law, which is traditionally a state matter. Concerns might also be raised about the broad jurisdictional clauses potentially federalizing aspects of surrogacy that are currently regulated at the state level, and the specific definition of 'female' could also be a point of contention.
The bill is concise and its core provisions are clear, allowing a reader to quickly grasp its main intent and implications.
Section 2, amending 18 U.S.C. Chapter 110, adding Sec. 2260B(a).
Federal Prohibition on Sex Offenders in Surrogacy
This provision makes it a federal crime for any individual who is required to register on the National Sex Offender Registry to obtain a child through a surrogacy arrangement or to enter into a surrogacy contract as an intended parent. Violators face fines, up to 10 years in prison, or both.
Supporters argue
Supporters contend this provision directly addresses a critical vulnerability, preventing individuals with a documented history of child sexual offenses from gaining legal custody of children via surrogacy, thereby enhancing child safety.
Critics contend
Critics might argue that while the intent is valid, the federal government's role in regulating family formation, traditionally a state matter, is an overreach. They might also question the effectiveness of a blanket ban versus more nuanced state-level screening processes.
Tradeoffs
Balances the desire for comprehensive child protection against concerns about federal intervention in state family law and the rights of individuals, even those with past offenses, to form families.
Section 2, adding 18 U.S.C. Sec. 2260B(b); and Section 3, adding 28 U.S.C. Sec. 1370(a).
Broad Federal Jurisdiction for Surrogacy Offenses
This provision establishes broad federal jurisdiction for both criminal prosecution of sex offenders in surrogacy and for civil actions related to surrogacy contracts. It applies if any party (intended parent, surrogate, child) travels in interstate/foreign commerce, if interstate commerce instrumentalities are used for payments or communications, or if the conduct otherwise affects interstate/foreign commerce.
Section 2, adding 18 U.S.C. Sec. 2260B(c).
Federal Court Nonenforcement of Surrogacy Contracts
This provision explicitly states that a Federal court may not enforce any surrogacy contract where an intended parent is a 'covered sex offender' (an individual required to register on the National Sex Offender Registry).
Defines 'female' as 'an individual who has, had, will have, or would have, but for a developmental or genetic anomaly or historical accident, a reproductive system that at some point produces, transports, and utilizes eggs for fertilization.'
Section 2(d)(8) and Section 3(b)(6)
Why it matters:This definition is specific and could have broader implications beyond the immediate scope of the bill, potentially influencing how 'female' is understood in other legal contexts if this bill were to become law. Its placement in definitions is standard legislative practice for defining terms used throughout the act, but its precise wording is notable.
Case for: Proponents might argue this definition provides biological clarity for the term 'surrogate mother,' ensuring that the bill's provisions are applied consistently based on biological sex.
Case against: Critics might argue this definition is unnecessarily restrictive or could be seen as politically charged, potentially excluding certain individuals or creating unintended legal precedents regarding gender identity in other contexts.
Estimated impact: Clarifies the biological scope for 'surrogate mother' within this act, potentially setting a precedent for similar definitions in future legislation.