Surrogacy Is Already Illegal

In 1984, a Virginia physician named H. Barry Jacobs announced a plan to broker human kidneys on the open market. Congress responded within months. The National Organ Transplant Act (NOTA) made it a federal crime to “knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation.” Up to five years in prison. Up to $50,000 in fines. And the Senate report was blunt: “Human body parts should not be viewed as commodities.”

That was then.

Open the website of any commercial surrogacy agency in 2026, and you will find a fee schedule. Base compensation for the surrogate: $40,000 to $90,000. Additional compensation if she loses her uterus: $3,000 to $20,000. That is a published price for a federally protected human organ. And it is not the only organ involved in the transaction.

The uterus has been classified as a human organ under NOTA since 2013, when the Department of Health and Human Services (HHS) added vascularized composite allografts to the statute’s coverage. The Organ Procurement and Transplantation Network confirmed the classification in 2018 and gave the uterus its own transplant category in 2021. Paying a living woman for her uterus (for transplantation into another woman) is unambiguously a federal crime.

But paying that same woman for nine months of gestational use of that same organ, with an explicit bonus if the organ is destroyed, is the basis of a multibillion-dollar American industry.

Commercial gestational surrogacy violates NOTA, not because Congress intended to regulate surrogacy in 1984—it could not have, since gestational surrogacy was not performed until 1985 and produced no births until 1986—but because the statute Congress wrote covers the conduct the surrogacy industry practices. The argument turns on a piece of human biology that almost nobody in this debate has been willing to discuss: the placenta.

The statutory language is spare. Here is the full text of the prohibition (emphasis added): “It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.”

Take each element in turn.

The acquisition. The statute prohibits acquiring, receiving, or “otherwise transferring” a human organ. To acquire is to gain control. A surrogacy contract gives the intended parents control over the surrogate’s uterus for the duration of the arrangement—specifying which medications she must take to prepare the organ for their use, what she may eat, drink, and do while the organ is in service, and where she must live relative to the designated hospital. Industry fee schedules itemize the acquisition in stages: a medication fee when the surrogate begins hormone injections to ready her uterine lining, a mock cycle fee to test the organ’s readiness, an embryo fee for the moment the organ receives the intended parents’ biological material, and a base gestational fee for nine months of organ function. If the organ is destroyed, the contract specifies an additional $3,000 to $20,000 for its loss. You do not compensate for the loss of something you have not acquired.

The organ. The uterus is a NOTA-covered organ. This is established by Department of Health and Human Services regulation, confirmed by the Organ Procurement and Transplantation Network—the federal system that manages organ transplantation in the United States—and not subject to dispute. In commercial gestational surrogacy, intended parents acquire use of this organ through a contract that governs its function for nine months.

The consideration. The industry calls it “base compensation”: $40,000 to $90,000 paid to the surrogate over the course of the pregnancy. This is not expense reimbursement. The contracts separately reimburse travel, housing, maternity clothing, lost wages, childcare, and monthly incidentals, each as its own line item. The base compensation is paid on top of all of them. It is a flat amount unrelated to what the surrogate actually spends. NOTA’s definition of what does not count as valuable consideration is specific: reasonable payments for removal, transportation, implantation, processing, preservation, quality control, storage, travel, housing, and lost wages. The base compensation is none of those things, and the industry proves it by reimbursing each separately. The organ loss provisions are even more revealing. When a surrogacy contract specifies that the surrogate will receive $3,000 to $20,000 if she loses her uterus, it is not reimbursing an expense. It is assigning a price to a federally protected organ. The industry does this because the risk is real: Gestational surrogacy carries elevated rates of placenta accreta, a condition in which the placenta embeds abnormally in the uterine wall and can require emergency hysterectomy. The contracts price the organ because the arrangement puts the organ at risk.

Interstate commerce. Surrogacy agencies, intended parents, surrogates, embryos, and payments routinely cross state lines. This element is trivially satisfied.

That leaves the contested element: “for use in human transplantation.” And this is where the placenta enters the argument.

Here is what happens inside a surrogate’s body after embryo transfer, stated as plainly as the biology allows.

An embryo at the blastocyst stage—day five, the standard point of transfer in American surrogacy—contains two distinct cell populations. One is the child. One is the placenta. These are not the same cells; by day five, they have already separated into different lineages with different functions. In vitro fertilization (IVF) laboratories recognize this distinction. The standard grading system used worldwide assigns independent quality scores to each population—one for the child, one for the placenta. Clinics use both scores to decide which embryos to transfer.

If the placental precursor has not formed properly—if it is sparse, disorganized, or incomplete—the embryo may not be transferred at all. The quality of the future placenta is a selection criterion for the procedure. The industry does not merely tolerate the placenta; the industry screens for it.

After transfer, the placental cells do what they are programmed to do. They attach to the uterine wall. They invade the tissue. They establish a blood supply. They develop into the placenta—a fully functional human organ, according to every medical authority that has classified it. The National Institutes of Health (NIH) calls it “the least understood human organ.” It has its own structure, its own tissue types, its own blood vessel network, and it performs specific functions: gas exchange, nutrient delivery, waste removal, hormone production, and immune regulation. It operates inside the surrogate’s body for nine months.

And in gestational surrogacy, unlike in natural pregnancy, the placenta carries the intended parents’ genes, not the surrogate’s. It is genetically foreign to the woman in whose body it develops. Her immune system recognizes it as foreign tissue. Immunologists have compared this to organ transplantation since Peter Medawar first described the fetus as an allograft in 1953, work that contributed to his Nobel Prize.

The biological sequence is straightforward. The placenta—present at transplantation as a distinct organ in its earliest form, already assessed and graded by the IVF laboratory—is genetically foreign to the surrogate. Upon transplantation, it engrafts in her uterine wall and continues developing into the fully functional organ that sustains the pregnancy for nine months. If a genetically foreign organ were placed inside any other part of a person’s body, functioned there for nine months, and was then removed, no one would debate whether that constituted transplantation. The placenta evades that recognition only because it arrives in the context of pregnancy, and pregnancy, for reasons that have nothing to do with biology, makes people stop asking what is actually happening inside the woman’s body.

Now return to the statute. The uterus—a covered organ—is acquired for valuable consideration. It is acquired for the purpose of receiving an embryo that already contains, at the moment of transfer, a distinct organ in its earliest form—the placenta—which is genetically foreign to the surrogate and which, upon transplantation, engrafts in the uterine wall and functions as an organ inside her body. That is “use in human transplantation.”

The immediate objection: Nobody enters a surrogacy contract to transplant a placenta. The simple answer: Try doing it without one.

Without the placenta, there is no pregnancy. Without a pregnancy, the uterus has no value to the intended parents. Every dollar of the gestational fee pays for the placenta’s work inside the surrogate’s body. The intended parents did not acquire an empty cavity. They acquired the organ in which their placenta—already present in the embryo at transplantation—would engraft and function. The placenta is not a side effect of surrogacy. It is the mechanism that makes surrogacy possible.

A second objection: The statute requires the acquired organ to be the same organ being transplanted—one organ, one transaction. The surrogacy scenario involves two organs: the uterus that is acquired, and the placenta that is present at and transplanted through the procedure.

But the statute does not say “for transplantation of that organ.” It says “for use in human transplantation.” The preposition matters. “Use in” denotes general participation in a process—not identity with the thing being transplanted. The uterus is used in the transplantation of placental tissue. It is the site where that transplantation occurs. Without it, the transplantation cannot happen. Congress wrote “for use in human transplantation”—not “for use in transplantation of a human organ as defined in this section.” It enshrined into law the broader phrasing​​. And the specific phrasing matters.

A third objection invokes legislative history. NOTA’s 1984 conference report mentions “blood or sperm” as examples of replenishable tissues not intended to be covered. Does this exclude the placenta?

No—for a reason that deserves emphasis. The word “embryo” does not appear anywhere in NOTA. Not in the original 1984 text; not in any amendment; not in any subsection. And the conference report mentions only two examples: blood and sperm. It says nothing about eggs, embryos, or the placenta. There is no reproductive-material exclusion in the statute. And there is certainly no surrogacy exception.

Even if one could argue that embryos are implicitly excluded by analogy to blood and sperm, the placenta is not an embryo.

The NIH classifies placental tissue as “extra-embryonic,” outside the embryo by definition. The Food and Drug Administration regulates placental products in a completely different category from reproductive cells. The federal government’s own regulatory architecture treats the placenta as something categorically distinct from the reproductive materials the conference report’s two examples might cover.

The placenta need not be a NOTA-listed organ for this argument to work. It just needs to be an organ, because that is what makes the procedure “human transplantation” rather than something lesser. And every medical authority in the world says it is one.

What the surrogacy industry has done, without anyone noticing, is construct a commercial arrangement in which federally protected organs are sold for valuable consideration, all with the purpose of transplanting and, from there, sustaining those organs by someone who is being paid for it. The statute that prohibits this has been on the books for over forty years. The organ it protects has been classified for over a decade. The only thing missing is enforcement.

No court has ruled that commercial gestational surrogacy is NOTA-compliant. No Department of Justice guidance has blessed the practice. No HHS interpretation has addressed it. The industry’s assumption of legality was never validated by anyone. It was simply assumed—and assumptions about criminal law do not create immunity from prosecution.

Congress could not have anticipated gestational surrogacy in 1984. But Congress wrote a statute that covers it. The exploitation Congress sought to prevent—economically vulnerable people assuming serious medical risk for payment so that wealthier parties can acquire use of their organs—describes commercial surrogacy with uncomfortable precision. The only difference between the kidney brokerage scheme that prompted NOTA and the arrangement that operates today is the organ involved and the reproductive technology that makes the exploitation possible.

The surrogacy industry has documented its own commodification of a federally protected organ in its published fee schedules. It has assigned dollar values to the uterus. It has priced the organ’s destruction as a foreseeable cost of doing business. It has built a multibillion-dollar enterprise on the confident assumption that nobody would read the statute carefully enough to notice what was happening.

It’s time someone at the Department of Justice did.