The SAFE KIDS Act: Fundamentally Flawed

Senator Rick Scott's recently introduced SAFE KIDS Act—the "Stopping Adversarial Foreign Exploitation of Kids in Domestic Surrogacy Act"—represents Congress's first legislative attempt to address international surrogacy concerns. While the bill responds to recent outlier cases such as the report of Chinese billionaire Xu Bo fathering over 100 children through U.S. surrogacy arrangements, and while ethical practices in surrogacy are crucial and meaningful regulation is necessary, a closer examination reveals that this bill is simply a knee jerk reaction to the recent cases of Xu Bo as well as the case in Arcadia CA (Guojun Xuan and Silvia Zhang), and the measure lacks the teeth necessary to achieve its stated goals.

These reports of Chinese abuse of U.S.-based surrogacy arrangements sent shockwaves through policy circles. The cases exposed glaring gaps in America's surrogacy oversight framework. Scott's bill attempts to address these gaps by invalidating commercial surrogacy agreements with citizens from "foreign entities of concern"—specifically China, North Korea, Russia, and Iran—and creating misdemeanor penalties for brokers who facilitate such arrangements.

On its face, preventing exploitation and protecting vulnerable women who become surrogates, and protecting children born through surrogacy, seem unquestionably important. The problem is that the SAFE KIDS Act is more political theater than effective policy. Further, because the ethical framework for surrogacy in the United States is in place when it is conducted by reputable and competent surrogacy agencies, surrogacy attorneys and fertility clinics, any regulations or laws must be thought out carefully and must contribute to the very good baseline practices in the United States rather than thwarting the process for many deserving intended parents.

The Marriage Loophole

The bill's most glaring weakness is its exception for married couples. According to the legislation, a surrogacy agreement remains valid if two prospective parents are legally married, or at least one is a U.S. citizen or lawful permanent resident. This exception fundamentally undermines the bill's entire premise.

If the concern is preventing foreign adversaries from exploiting surrogacy to obtain U.S. citizenship for their children, why would marriage status matter? A married Chinese billionaire can exploit the system just as easily as an unmarried one. Marriage doesn't prevent fraud, abuse, or trafficking. It doesn't address national security concerns. It doesn't protect surrogates from deception or coercion.

This exception suggests the bill's authors are less concerned with genuine oversight and more focused on optics—appearing tough on China while carving out exemptions that render the legislation largely symbolic.

Missing the Real Issues

The SAFE KIDS Act targets nationality rather than addressing the problems within American surrogacy itself. The U.S. lacks comprehensive federal regulation of surrogacy arrangements. Many States have exceptional surrogacy laws that protect surrogates and intended parents. However, some State laws may be silent on key protections.

The reputable surrogacy agencies in the United State such as Worldwide Surrogacy Specialists already operate with best ethical practices. Such agencies reveal a model of how surrogacy should be conducted. Real reform would establish mandatory regulations for all surrogacy agencies operating in the United States:

• Clear standards for surrogate screening, informed consent, and compensation transparency
• Independent legal representation for surrogates, separate from intended parents
• Medical and psychological support requirements throughout the process
• Enforcement mechanisms with actual penalties for violations
• Comprehensive background checks and home studies for all intended parents, regardless of nationality
• A limit of not more than two surrogacy at a time for intended parents who desire to have more than one child.

Instead, the SAFE KIDS Act offers a misdemeanor penalty for brokers—a slap on the wrist that's unlikely to deter bad actors in an industry where individual surrogacy arrangements can exceed $200,000.

National Security Theater

Framing this as primarily a national security issue also misses the point. While concerns about birthright citizenship exploitation deserve attention, they're separate from the core surrogacy oversight questions. Children born through surrogacy deserve protection from trafficking and abuse regardless of their parents' nationality. American surrogates deserve robust legal protections whether working with domestic or international intended parents.

By conflating these distinct issues, the SAFE KIDS Act risks politicizing surrogacy policy in ways that ultimately harm everyone involved while failing to address the actual vulnerabilities in the system.

What Real Reform Looks Like

We absolutely need oversight and regulation in U.S. gestational surrogacy. But effective legislation would focus on strengthening the entire framework—establishing clear ethical guidelines, protecting all parties' rights, ensuring transparency, and creating meaningful accountability.

The Chinese billionaire case should prompt serious examination of how we regulate reproductive services, not knee-jerk nationality-based restrictions riddled with exceptions. If we're serious about preventing exploitation, we need comprehensive federal standards that apply uniformly, protect surrogates' autonomy, ensure children's welfare, and hold bad actors genuinely accountable. The SAFE KIDS Act, as currently written, accomplishes none of these goals. 

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