Surrogacy Laws in the US Are Complex and Inconsistent

By Kaitlyn Schaeffer

Once upon a time, children could be conceived in only one way. But advances in medical technology have resulted in a number of ways for children to be born; one such method is via surrogacy. Surrogacy has provided a way for single parents or couples who are for some reason unable to conceive to have children. In cases where a surrogate bears a child for others, she is expected to surrender the child and all corresponding legal rights to the parents. In nearly every case, this understanding is memorialized in a contract.

Our common law system has treated surrogacy in a non-uniform way. In the United States, every state has the power to create its own laws regarding surrogacy. The result is a fractured, complex “jigsaw puzzle” of state laws that often conflict with each other.

Here are a few examples:

The New Jersey Supreme Court was faced with a complex surrogacy question in 1990. Parents William and Elizabeth hired Mary Beth as a surrogate in a traditional surrogacy arrangement (where the surrogate’s egg was inseminated by William’s sperm, and then she carried the child to term). After Mary Beth gave birth, she refused to turn over the baby, and the parents brought suit. The Court held the contract void on grounds of public policy, and found that Mary Beth was the child’s legal mother because she was the baby’s biological mother; however, the Court nonetheless awarded custody of the child to William and Elizabeth because it believed that they would offer the most stable environment for the child, and granted Mary Beth visitation rights. Many states followed New Jersey’s lead and disallowed traditional surrogacy.

In 1993, the California Supreme Court upheld that a contract between surrogate Anna and parents Mark and Cripsinia. In this case, Crispina’s egg was fertilized by Mark’s sperm, and the embryo was implanted into Anna. The relationship between the parties soured, and Anna refused to turn over the child. The parents sued, and the court found that Mark and Crispina were the legal parents, and refused to grant visitation rights to Anna.

In Pennsylvania, an appellate court found that the surrogacy contract made Sherri the legal parent of the child that was conceived using her eggs. In this case, Sherri and her then husband Lamar hired a surrogate to gestate an embryo using Sherri’s eggs and donor sperm. Sherri and Lamar decided to split up prior to the child’s birth. Lamar assumed physical custody once the child was born, but the court found that Sherri was the legal mother and thus owed child support to Lamar.

Some states don’t allow any surrogacy at all; they even criminalize it. Many states only allow gestational surrogacy (as opposed to traditional surrogacy). Only a few states allow commercial surrogacy. Some don’t allow surrogacy for same-sex couples or single parents. The takeaway on surrogacy laws in the US? “It’s a mess.”

Read the full article here.