For many of the children, the future remains unclear. Even amid an ongoing battle over who should have custody, the pair has engaged new surrogates.

“People are drawn to being surrogates for all sorts of different reasons, but for many of them, like Kayla, this was something they wanted to do to kind of try to make a difference,” Kofman said. “It was especially painful to realize that they might be bringing a child into a situation that not only was not great, but if anything, potentially dangerous.”

The case is highly unusual, said Deborah Wald, a certified family law specialist based in San Francisco. She said she has never seen a child born through surrogacy end up in the foster care system in her 35 years in the field.

“These typically are very wanted, very planned for, very loved children,” Wald said. “The other times there have been sort of scandals within the industry, it’s been more with professionals figuring out how to take off with the money or those kinds of things.”

KQED’s Forum spoke to Kofman and Wald about the Los Angeles family, commercial surrogacy in California and regulations around the practice.

This interview has been edited for brevity and clarity.

The Los Angeles case and a trend among the wealthy

How unusual is this case — and what motivated the Los Angeles couple?

Ava Kofman: It’s incredibly unusual to have this many children, and certainly it seems like what was going on inside the home is quite unusual … but there’s also nothing stopping people from having as many children as they would like through surrogacy or assisted reproduction.

There’s been some great reporting recently in the Wall Street Journal, as well, showing people having upward of 100 children, in part, using surrogates.

[The couple] wanted to have a big family; they wanted to have a lot of kids as they got older, who could be successful and carry on the family bloodline and legacy.

It does seem like this is part of a wider trend we’ve seen with billionaires like Elon Musk [who has 14 children] and others who are really interested in spreading their gene pool and their legacy.

A shocking case in Los Angeles has rocked the fertility industry, sparking a conversation around commercial surrogacy and regulations. (iStock/Getty Images)

How were they able to have over 20 children through surrogates?

Kofman: This couple — after they had a few children through a professional surrogate agency — actually opened their own agency. And this is what was called Mark Surrogacy. As far as I could tell, no one’s really done this before.

The surrogates had no awareness of this, and neither, it seems, did some of the attorneys working with the agency.

Most parents are using an agency because they want a middleman, right? They want to be protected; they want to have someone who really knows the ropes. It’s a field with its own legal particularities. There [are] all kinds of things that can easily go right with experienced people, and can easily go wrong without them.

If Kayla Elliott or any other surrogates wanted to get custody of the child in this case, could they? 

Kofman: Legally, it seemed like it would have been quite complicated. She definitely didn’t have any legal custody off the bat, and no surrogates do. The industry kind of wouldn’t work if that [were] the case … the surrogate is not biologically related most of the time.

In some states … there’s no federal regulation … and it’s so, so state-based. And some states are in fact even silent on the question of how surrogacy should work.

The regulations and practices around surrogacy in California

Are all versions of surrogacy commercial? 

Deborah Wald: I want to make sure everyone’s aware, there’s a huge amount of surrogacy that happens … [for example] a sister having a baby for her infertile sister, that kind of thing.

I think it’s very accepted within certain cultures and in certain communities that if you can’t have a baby and you have someone who loves you who’s going to do that, they’ll do it for you.

A couple holds hands as they meet with a pregnant woman who is interviewing them for potential adoptive parents. (SDI Productions via Getty Images)

What are the typical compensation rates for commercial surrogacy in California?

Wald: It varies a lot. So this is what the women themselves get paid. This has nothing to do with what the doctors charge or what the agencies charge. Typical rates were in the $30,000 to $50,000 range.

I still do sometimes see that. But I also recently saw a $120,000 fee to the surrogate herself. So it’s really jumped during and since COVID.

Are there protections around surrogacy in California?

Wald: Every surrogate I’ve ever represented has been looking for the same reassurance that intended parents look for, which is that she’s not doing this because she wants another child. And she wants to know that no matter what, the intended parents can’t bail. That the baby will be theirs, that she will not be legally and financially responsible for a child that’s not genetically hers, and that she never intended to parent.

California law actually requires that a surrogate have a right to independent legal counsel of her own choosing. It can’t be the same attorney who works for the agency or the same attorney who’s representing the intended parents.