Is It Legal to See a Sexual Surrogate in the United States?

It would be easy to answer this question if the term sexual surrogate appeared anywhere in US law, but it doesn't. It would be convenient if surrogacy referred to one job description, with a clearly identifiable list of activities and interactions associated with it, but again, no luck there.

Sexual surrogacy is a term used by different people with different purposes to describe a range of experiences and interactions, from quasi-therapeutic to explicitly erotic and commercial.

And so the answer to this question requires a little clarifying, some digging, and in the end it's more about weighing ones options than having a simple answer.

For starters, the answer to the question depends on what you mean by sexual surrogate. Anyone can call themselves a sexual surrogate. It's not a protected title and most professionals aren't even clear on what it means.

A quick search online will show you that a lot of what is advertised as sexual surrogacy is no more or no less than sex work. If the difference between sex surrogacy and sex work, or prostitution, is in name alone, the question you should be asking should not be about surrogacy, but about prostitution.

But there is another kind of sex surrogacy, also known as surrogate partner therapy, which has been around since the 1970s and is distinguished from sex work in several ways. Three common differences cited are:

  • A surrogate partner always works in collaboration with a therapist, and only sees clients upon referral by a therapist or who are working with a therapist currently who is open to including a surrogate in the work.
  • A sexual surrogate will only see a client for a limited number of sessions, the relationship is understood from the beginning to be finite.
  • A surrogate receives training specific to the work of being a surrogate, and adheres to a professional code of conduct and ethical guidelines.

This practice, which was most notably represented in the film The Sessions)raises different legal questions.

So if you are trying to figure out if seeing, or being, a sex surrogate is going to get you arrested or thrown into jail in the US, the first thing you need to specify is what you mean by surrogacy. What follows is a discussion that applies to the second practice, which is relatively rare in the US but is still promoted by the International Professional Surrogates Association (IPSA), through training, public education, and the application of professional codes of conduct and ethical guidelines.

Relevant Laws
If one was going to be arrested and or charged with a crime related to receiving or practicing surrogacy, it would most likely be under laws which restrict and prohibit prostitution. These are state laws, which means that you need to know something about how your state laws define prostitution.

In most states, prostitution is defined as the exchange of sexual contact for a fee. Some states provide a detailed definition of sexual contact and others don't. Since sexual surrogacy is by definition and design sexual, it seems obvious that in theory the practice could be considered prostitution in a legal context. That's the theory.

In practice, according to IPSA, none of their certified surrogates has ever been charged for practicing surrogacy.

And when you talk with lawyers who are familiar with how prostitution laws are policed and prosecuted they will tell that there is a difference between what's illegal and what's prosecuted.

In order for you to be arrested, the police would have to be aware of the activity, and they would have to choose to prioritize sexual surrogacy as a criminal activity they want to focus on. Given the gray area that it exists in, and how few people practice sexual surrogacy in the US, it seems unlikely that law enforcement will turn it's attention to arrested surrogates and their clients. I spoke with several surrogates when researching this article and none were concerned about being arrested, despite the fact that they all advertise their services online.

This doesn't mean they couldn't be arrested, only that none of them ever have been and for their own reasons they don't fear the possibility of it.

A California Exception?
For many years sexual surrogates working in California have considered their work to be legal. The origin of this belief is a statement made by Attorney General Kamala Harris in 1997 while she was a District Attorney. In an article published in the San Jose Mercury News about sex surrogates, Harris was quoted as saying “If it's between consensual adults and referred by licensed therapists and doesn't involve minors, then it's not illegal.” It's not clear if she said this because there is some sort of legal exception in California law or if it reflects the reality that sexual surrogacy is not a priority for policing or prosecution. It's also not clear how much weight a quote made to a newspaper would carry in a court.

The Bottom Line:
Sexual surrogacy tends to pop up in the media every few years and receives a disproportionate amount of attention considering how rare it is. In the US, according to one estimate, there may be no more than 25 professional surrogates practicing. Given this, it seems like something that one is unlikely to get arrested for. However the grey area it exists in is not really a benefit, and even if it has never happened before, seeing a sexual surrogate or practicing sexual surrogacy carries the risk of arrest in any state where there is no clear legal exemption.

If you are considering sexual surrogacy either as a client or practitioner, the best course would be to start by consulting a professional therapist in the state you are living and working in. A certified sex therapist or licensed marriage and family therapist would be most likely to know something about this issue. They should be able to tell you about how their professional codes of conduct and ethical guidelines address the issue of sexual surrogacy. If you are considering becoming a surrogate, or if you are a professional therapist and are interested in collaborating with a surrogate, it would also be wise to consult a lawyer familiar with prostitution laws in your state.