Contract or Coercion? The Line Between Surrogacy and Trafficking

By: Abbey Webb

INTRODUCTION:

            In 2025, Alexa Fasold entered into what she believed was a conventional commercial surrogacy arrangement. After discovering Mark Surrogacy Investment, LLC through social media, Fasold and her husband spent months discussing the terms of the surrogacy arrangement before signing a contract.  Fasold believed she was carrying a child for a couple struggling with infertility and, upon completion of the pregnancy, expected to deliver the child to that couple.[1] Instead, while pregnant, Fasold discovered that Mark Surrogacy Investment, along with the intended parents, were under investigation. Police had discovered twenty-one children connected to the intended parents through the agency, most of whom had been born via surrogacy.[2] Other women who had served as surrogates for the agency reported that they, too, had been provided misleading information about the intended parents before signing their contracts.[3]

            Fasold’s experience illustrates the issues that can arise when the true circumstances of a surrogacy arrangement differ from what a surrogate understood when she agreed to participate. A surrogate may voluntarily agree to carry a child for intended parents, but questions may arise regarding whether her agreement was meaningfully informed if the information provided to her was inaccurate or the circumstances surrounding the arrangement involved exploitation.[4] These questions become especially significant when considering the relationship between commercial surrogacy and human trafficking.

            That relationship between commercial surrogacy and human trafficking has received increasing international attention. In 2024, the European Union adopted legislation requiring member states to criminalize the exploitation of surrogacy when the conduct satisfies the constituent elements of human trafficking.[5] In 2025, the United Nations Special Rapporteur on violence against women and girls called for recognition of surrogacy as a system of violence, exploitation, and abuse, urging for its abolition.[6] These developments reflect differing views on whether the risks associated with commercial surrogacy are best addressed by regulating particular instances of exploitation or by questioning the commercial surrogacy model more broadly. At the same time, characterizing commercial surrogacy as human trafficking presents its own legal and conceptual difficulties. Many women enter surrogacy arrangements through a knowing and voluntarily choice, and neither compensation nor economic need, on its own, necessarily establish that a surrogate has been exploited.[7] The challenge, therefore, is distinguishing between a voluntary reproductive arrangement and one in which the circumstances surrounding the surrogate’s participation may satisfy the legal requirements for human trafficking.

This Article examines that distinction. It first considers commercial surrogacy and the legal framework governing human trafficking before examining the circumstances under which a surrogacy arrangement may implicate trafficking law. Particular attention is given to consent, fraud, coercion, vulnerability, and unequal bargaining power. Rather than treating commercial surrogacy as inherently exploitative or inherently voluntary, this Article examines when the circumstances surrounding a commercial surrogacy arrangement may satisfy the legal requirements for human trafficking.

LEGAL AND PRACTICAL FRAMEWORK OF COMMERCIAL SURROGACY

a.     TYPES OF SURROGACIES

Surrogacy arrangements can be classified into two categories: traditional and gestational. In traditional surrogacy, the surrogate provides her own egg (often through the process of artificial insemination) and therefore is genetically related to the child. In contrast, gestational surrogacy involves an embryo created through in vitro fertilization (IVF) using the gametes of the intended parents, donors, or a combination of both. The embryo is then transferred to the surrogate, who will have no genetic relationship with the child.[8] Gestational Surrogacy is now the predominant form of surrogacy addressed by contemporary medical and legal frameworks, while traditional surrogacy is relatively uncommon in current clinical practice.[9]

Surrogacy may also be classified as commercial or altruistic. Commercial arrangements provide compensation to the surrogate beyond reimbursement of pregnancy-related expenses, while altruistic arrangements generally do not provide compensation for the surrogate’s services.[10] This Article will focus primarily on commercial gestational surrogacy because it involves both contractual relationships and financial exchanges between surrogates and intended parents.  It is also typical in commercial surrogacy arrangements that the intending parent(s) and surrogate mother were strangers to one another and are brought together, and often have their relationship mediated, through paid intermediaries. 

b.    STRUCTURE OF A COMMERCIAL SURROGACY ARRANGEMENT

  A commercial gestational surrogacy arrangement typically involves the surrogate mother, intended parent or parents, medical professionals, and in most cases, a surrogacy agency or other intermediary.[11] The process generally includes screening and matching the parties, medical and psychological evaluations, negotiation of a written agreement, and IVF treatment resulting in the transfer of an embryo to the surrogate mother.[12] The agreement may address compensation, expenses, medical care, insurance, parentage, and the parties’ respective responsibilities during the pregnancy.[13] It is recommended that surrogate mothers obtain independent legal counsel and become fully informed about the medical, legal, and contractual aspects of the arrangement. Ethical guidance also recognizes the surrogate mother as the source of consent for her own medical care throughout the pregnancy, including prenatal care, labor, delivery, and aftercare.[14] At the same time, contractual provisions concerning medical treatment may create disputes regarding the surrogate mother’s exercise of that decision-making authority, particularly when the intended parents and surrogate mother disagree about pregnancy-related medical decisions.[15] 

c.     THE U.S. LEGAL FRAMEWORK

In the United States, commercial gestational surrogacy is governed primarily by state law rather than a comprehensive federal statutory framework.[16] States differ in whether they expressly prohibit, restrict, or permit gestational surrogacy arrangements and in the requirements they impose on surrogate contracts and the establishment of legal parentage.[17] Consequently, the enforceability of a surrogacy agreement and the legal rights and obligations of the parties may differ substantially depending on jurisdiction.[18] 

This fragmented legal framework means that commercial surrogacy is not operated under a set of uniform rules in the United States. Instead, the legal structure of a particular arrangement depends on the jurisdiction and the terms of the agreement, as well as the medical and legal professionals involved.

WHAT CONSTITUTES AS HUMAN TRAFFICKING

a.     THE FEDERAL DEFINITION

The Trafficking Victims Protection Act (TVPA) provides the primary federal framework for addressing human trafficking in the United States.[19] The TVPA identifies two primary forms of severe trafficking in people: sex trafficking and labor trafficking.[20] This article focuses on the definition of labor trafficking. The TVPA defines labor trafficking as “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”[21] This definition raises the threshold question of whether the activity at issue constitutes labor or services and, if so, whether the labor or services were obtained through one of the prohibited means identified by the statute.[22]

By contrast, the European Union approach noted above relies on the international definition of human trafficking found in the Palermo Protocol. The Palmermo Protocol includes, but is not limited to, sex and labor trafficking, and specifically is open to other forms of exploitation.  Further, as seen below, other elements of the definition of human trafficking under the Palmero Protocl are broader than that under federal statute. Hence, the analysis of human trafficking under federal statutory law in the United States is more limited than that which would apply under international law, which could change the conclusion as to which forms of commercial surrogacy constitute human trafficking.  Therefore, some forms of commercial surrogacy which would not be considered human trafficking under federal statutes in the United States may still be considered human trafficking under international law. 

b.    FORCE, FRAUD, AND COERCION

The TVPA identifies force, fraud, and coercion as the prohibited means through which labor or services may be obtained.[23] Force includes physical force or threats of physical restraint.[24] Fraud generally involves deception used to obtain a person's participation, while coercion under the TVPA includes threats of serious harm or physical restraint, schemes intended to cause a person to believe that failure to perform an act would result in serious harm or restraint, and abuse or threatened abuse of the legal process.[25] A voluntary agreement does not necessarily dismiss the fact that trafficking may have occurred; the relevant question is whether prohibited means were used to obtain or maintain the person’s labor or services.[26] At the same time, economic hardship, unequal bargaining power, or an unfavorable agreement does not, standing alone, establish trafficking under the federal definition.[27]  By contrast, under the Palmermo Protocol, “the abuse of power or of a position of vulnerability” is also a prohibited means. 

c.     CONSENT AND PURPOSE OF EXPLOITATION

The role of consent is especially important to consider when analyzing potential labor trafficking. A person’s initial willingness to perform labor or services does not necessarily foreclose a trafficking claim if force, fraud, or coercion is subsequently used to obtain or maintain that labor.[28] Conversely, not every instance of exploitation or difficult working conditions constitutes human trafficking.[29] The federal framework requires both the use of force, fraud, and coercion” and a purpose of “subjection to involuntary servitude, peonage, debt bondage, or slavery.”[30] These requirements distinguish exploitation generally from conduct that constitutes human trafficking.[31] That distinction is particularly relevant when considering commercial surrogacy, where a person may knowingly enter into a contractual arrangement but the circumstances surrounding that agreement may later raise questions concerning fraud, coercion, or the voluntariness of the services provided.

WHEN COULD COMMERCIAL SURROGACY BECOME TRAFFICKING?

The application of human-trafficking law to commercial surrogacy depends on whether the elements of trafficking can be satisfied within the context of reproductive labor. The question is not whether commercial surrogacy is inherently trafficking, but whether a particular arrangement involves the recruitment or obtaining of a person for labor or services through force, fraud, or coercion for an enumerated exploitative purpose.[32]

a.     REPRODUCTIVE LABOR AS “LABOR OR SERVICES”

The first question to ask is whether the services performed by a surrogate fall within the TVPA's reference to “labor or services.” The statute does not define the phrase, but courts have given it its ordinary meaning rather than limiting it to a particular industry or occupation.[33] Within case law such as United States v. Kaufman, labor is described as the expenditure of physical and mental effort and services is considered the conduct or performance that assists or benefits someone or something.[34]Federal authorities recognize that forced labor may occur in a wide range of legal and illegal settings.[35] A surrogate mother performs an extended physical service by carrying a pregnancy and giving birth, often under contractual obligations established before the pregnancy begins. Whether reproductive labor falls within the statutory language, however, has received little direct consideration by U.S. courts.[36] This issue has been addressed more directly through scholarship addressing international surrogacy. For example, Amy Parker, the author of an academic article on Reproductive Labor or Trafficking, argues that commercial surrogacy may implicate labor-trafficking principles where reproductive labor is obtained through coercive conditions and significant disparities in socioeconomic power.[37] This argument does not establish that all commercial surrogacy constitutes trafficking. Rather, it raises the threshold question of whether reproductive labor can be analyzed under the same legal framework applied to other forms of compelled labor.

b.    FORCE, FRAUD, COERCION IN SURROGACY ARRANGEMENTS

The second question is, if reproductive labor qualifies as “labor or services,” then what were the circumstances through which the labor was obtained. In a surrogacy arrangement, force could involve physical force, physical restraint, or threats of either.[38] Coercion could involve threats of serious harm, which may include psychological or financial pressure, or the abuse or threatened abuse of the legal process.[39] Fraud may be particularly relevant where a surrogate is induced to enter an arrangement through material misrepresentations concerning the intended parents, compensation, medical procedures, or other significant terms of the agreement.[40] The Alexa Fasold’s experience illustrates why fraud warrants particular attention. Fasold entered her surrogacy arrangement believing she understood the circumstances surrounding the intended parents, only to learn during her pregnancy that the true circumstancesdiffered substantially from what she had been told originally.[41] These allegations do not establish that Fasold was trafficked, but they illustrate a factual circumstance in which the validity and voluntariness of a surrogate's agreement could become relevant to a trafficking analysis.

c.     CONSENT, ECONOMIC VULNERABILITY, AND UNEQUAL BARGAINING POWER

A surrogate’s initial willingness to participate does not necessarily resolve the trafficking question. The United States Department of State explains that trafficking can occur even when a person initially consents to provide labor or services; the relevant question focuses on the trafficker’s subsequent use of force, fraud, or coercion.[42] Thus, signing a surrogacy agreement would not necessarily prevent a trafficking finding if prohibited means were later used to obtain or maintain the surrogate’s labor.[43] The more difficult question concerns economic vulnerability and unequal bargaining power. Surrogates may enter commercial arrangements for numerous reasons, including both the desire to assist intended parents and the financial compensation offered. Economic need or an imbalance in bargaining power, standing alone, does not establish labor trafficking under the TVPA.[44] 

Internationally, however, it has been questioned whether severe socioeconomic disparities can affect the voluntariness of consent in commercial surrogacy arrangements. For example, research on commercial surrogacy in India has identified significant socioeconomic and power disparities between surrogates and the clinics and intermediaries involved in arranging their pregnancies, raising questions about the extent to which surrogates are able to exercise meaningful choice within these arrangements.[45] Parker argues that substantial disparities in bargaining power may contribute to conditions in which reproductive labor is obtained through exploitation.[46] This approach differs from treating poverty or compensation itself as sufficient evidence of trafficking and instead asks whether vulnerability contributed to the use of legally prohibited means.

d.    DISTINGUISHING EXPLOITATION FROM TRAFFICKING

It is essential to note that there is a difference between human trafficking and exploitation. Commercial surrogacy may involve unequal bargaining power, financial pressure, difficult medical circumstances, or contractual disagreements without necessarily satisfying the elements of labor trafficking.[47] Conversely, a contractual relationship does not immunize conduct from trafficking law if force, fraud, or coercion is used to obtain or maintain labor or services.[48] Consequently, the appropriate question is fact specific. A commercial surrogacy arrangement may warrant consideration under trafficking law when the evidence demonstrates that a person was recruited or obtained for reproductive labor through prohibited means and for a prohibited purpose covered by the trafficking statute.[49] Compensation, economic vulnerability, or the existence of a contract may provide context for that question, but none alone determines whether trafficking has occurred.

EXPLOITATION VS. VOLUNTARY CHOICE

The relationship between commercial surrogacy and human trafficking cannot be evaluated solely by examining the existence of compensation or the potential vulnerability of surrogates. Commercial surrogacy arrangements involve individuals who may have different motivations, circumstances, and experiences. Some women may view surrogacy as a voluntary decision providing them with financial compensation and allowing them to assist parents who may be struggling with infertility.[50] Other arrangements, however, may involve circumstances in which a surrogate's ability to make a meaningful choice is affected by deception, coercion, or significant disparities in bargaining power.[51] The possibility of exploitation, therefore, does not necessarily establish that a commercial surrogacy arrangement constitutes human trafficking. Economic need, standing alone, does not demonstrate that a surrogate was compelled to participate. Similarly, the fact that a surrogate receives compensation does not establish that her decision was involuntary. Treating all compensated surrogacy as trafficking could disregard the agency of women who knowingly and voluntarily enter these arrangements.[52] At the same time, characterizing an arrangement as voluntary simply because a surrogate signed a contract may overlook circumstances affecting the formation or continuation of her consent. It has been questioned whether substantial disparities in economic and bargaining power can affect the voluntariness of consent in commercial surrogacy, particularly in international arrangements involving women from economically disadvantaged communities.[53] 

The 2026 debate surrounding international surrogacy similarly demonstrates disagreement over whether compensation and vulnerability should be viewed as evidence of exploitation in themselves or considered only in conjunction with conduct satisfying the established elements of trafficking.[54] The distinction between voluntary choice and exploitation is therefore necessarily fact-specific. A surrogate's economic circumstances, compensation, contractual agreement, and personal motivations may provide context, but they do not independently determine whether trafficking has occurred. The more significant question is whether the circumstances surrounding the arrangement deprived the surrogate of meaningful choice through conduct recognized by applicable trafficking law. Maintaining this distinction allows commercial surrogacy to be evaluated without presuming either that every arrangement is exploitative or that every contractual agreement is necessarily voluntary.

CONCLUSION

Commercial surrogacy and human trafficking are not synonymous, but the circumstances surrounding a surrogacy arrangement may create a meaningful intersection between the two. A woman may voluntarily choose to become a surrogate and enter into a compensated contractual relationship without that decision constituting exploitation or trafficking. At the same time, the existence of a contract does not necessarily resolve whether her participation was obtained or maintained through fraud, force, or coercion. Therefore, the challenge is determining when the circumstances surrounding a commercial surrogacy arrangement cross the threshold established by human-trafficking laws. Compensation, economic vulnerability, and unequal bargaining power may be relevant to understanding a surrogate’s circumstances, but they should not independently establish trafficking. Conversely, allegations of deception, coercion, or other prohibited conduct should not be disregarded simply because a surrogate initially agreed to the arrangement or signed a contract. As commercial surrogacy continues to develop in the United States and internationally, courts and policymakers may increasingly confront this distinction. The central question is therefore not whether commercial surrogacy should be classified as trafficking, but whether the law can effectively distinguish voluntary reproductive arrangements from those in which a surrogate's labor is obtained through prohibited means.

[1] Kimmy Yam, A Pregnant Surrogate for a Defunct California Company Doesn’t Know What Will Happen to the Baby She’s Carrying, NBC News (July 25, 2025), https://www.nbcnews.com/news/us-news/pregnant-surrogate-california-mark-surrogacy-rcna220549 (last accessed Sept. 24, 2026).

[2] Id.

[3] Id.

[4] Ethics Committee of the American Society for Reproductive Medicine, Consideration of the Gestational Carrier: An Ethics Committee Opinion, 119 Fertil. Steril. 583, 583–86 (2023).

[5] Directorate-General for Migration and Home Affairs, The EU Adopts Stronger Rules to Fight Trafficking in Human Beings, European Commission (May 27, 2024), https://home-affairs.ec.europa.eu/news/eu-adopts-stronger-rules-fight-trafficking-human-beings-2024-05-27_en (last accessed Sept. 24, 2026).

[6] Reem Alsalem (UN Special Rapporteur on Violence Against Women and Girls), Press Briefing on Surrogacy and Gender-Based Violence, UNifeed (Oct. 10, 2025).

[7] Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583–86.

[8] Id. at 583-84.

[9] Id.

[10] Id., at 583–86; see also Yam, supra note 1.

[11] Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583–84, 586; see also Yam, supra note 1.

[12] Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583–86; see also Yam, supra note 1.

[13] Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583–86.

[14] Id. at 583, 585.

[15] Id. at 585-586.

[16] Id. at 583, 586.

[17] Id. at 583-84, 586.

[18] Id.

[19] Trafficking Victims Protection Act of 2000 (TVPA), Pub. L. No. 106-386, 114 Stat. 1464 (2000) (codified in scattered sections of titles 18 and 22 of the United States Code).

[20] 22 U.S.C. § 7102(11); U.S. Dep't of Justice, Human Trafficking: Key Legislation (Aug. 23, 2023).

[21] 22 U.S.C. § 7102(11)(B).

[22] Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583, 586.

[23] 22 U.S.C. § 7102(11)(B); see also U.S. Dep't of Justice, Human Trafficking: Key Legislation (Aug. 23, 2023).

[24] 18 U.S.C. § 1589(a)(1).

[25] 22 U.S.C. § 7102(3) (defining “coercion”); see also U.S. Dep't of Justice, Human Trafficking: Key Legislation (Aug. 23, 2023); Federal Human Trafficking Law Overview, Frederick Cnty. Gov't Doc. Ctr., at 1–2.

[26] See 18 U.S.C. § 1589(a).

[27] See 22 U.S.C. § 7102(11)(B); Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583, 586.

[28] 22 U.S.C. § 7102(11)(B); see also Alsalem, supra note 6.

[29] 18 U.S.C. §§ 1581, 1584, 1589, 1590; see also Federal Human Trafficking Law Overview, Frederick Cnty. Gov't Doc. Ctr., at 1–2.

[30] 22 U.S.C. § 7102(11)(B).

[31] Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583, 584, 586.

[32] 22 U.S.C. § 7102(11)(B); 18 U.S.C. §§ 1589,1590; see also Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583, 584–586.

[33] See 18 U.S.C. § 1589(a); United States v. Kaufman, 546 F.3d 1242, [1263] (10th Cir. 2008).

[34] Id.

[35] 18 U.S.C. § 1589; see also Federal Human Trafficking Law Overview, accord Frederick Cnty. Gov't Doc. Ctr., at 1–2; U.S. Dep't of Justice, Human Trafficking: Key Legislation (Aug. 23, 2023).

[36] 18 U.S.C. § 1589; see also Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583, 586; see also Yam, supra note 1.

[37] Amy Parker, Reproductive Labor or Trafficking: The Effect of Disparate Power on Consent in Transnational Surrogacy Agreements, 25 J. Transnat'l L. & Pol'y 155, 167–72 (2016).

[38] See 18 U.S.C. § 1589(a)(1).

[39] See 22 U.S.C. § 7102(3); 18 U.S.C. § 1589(a)(2)-(3), (c).

[40] 22 U.S.C. § 7102(11)(B).

[41] Yam, supra note 1.

[42] Off. to Monitor and Combat Trafficking in Persons, U.S. Dep't of State, Trafficking in Persons Report (2025).

[43] Id.

[44] 22 U.S.C. § 7102(11)(B).

[45] Madhusree Jana & Anita Hammer, Reproductive Work in the Global South: Lived Experiences and Social Relations of Commercial Surrogacy in India, 36 Work, Employment & Society 1007, 1017–19 (2022).

[46] Parker supra note 36, at 167–72.

[47] 22 U.S.C. § 7102(11)(B).

[48] Id.

[49] 18 U.S.C. §§ 1589, 1590.

[50] Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583–86; see also Yam, supra note 1.

[51] Alsalem, supra note 6.

[52] Ethics Committee of the American Society for Reproductive Medicine, supra note 4, at 583–86.

[53] Id.

[54] Alsalem, supra note 6.