Research by Trudy Rushforth

Legal Status of Surrogacy Contracts in the United States:

There are two types of surrogacy: traditional surrogacy and gestational surrogacy. In traditional surrogacy, the surrogate is also the biological mother of the child. In gestational surrogacy, the surrogate is not the biological mother of the child. Some states actively or tacitly permit surrogacy contracts, and other states prohibit them. Below is a list of relevant statutes and cases in various states.

Arizona:

A.R.S. § 25-218

(a) No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.

(b) A surrogate is the legal mother of a child born as a result of a surrogate parentage contract and is entitled to custody of that child.

(c) If the mother of a child born as a result of a surrogate contract is married, her husband is presumed to be the legal father of the child. This presumption is rebuttable.

(d) For the purposes of this section, “surrogate parentage contract” means a contract, agreement or arrangement in which a woman agrees to the implantation of an embryo not related to that woman or agrees to conceive a child through natural or artificial insemination and to voluntarily relinquish her parental rights to the child.

An Arizona appellate court held subsection (b) to be unconstitutional. Since the presumption of paternity in subsection (c) was rebuttable, but the presumption of maternity in subsection (b) was not, the statute was held to violate the Equal Protection Clause of the U.S. Constitution. See Soos v. Superior Court in and for County of Maricopa, 897 P.2d 1356, 1361 (Ariz. App. Div. 1, 1994). The court used strict scrutiny to analyze the statute because it dealt with the fundamental right of procreation and family relations, even though gender based classifications are typically reviewed under intermediate scrutiny. Id. at 1360.

Illinois:

Illinois has a comprehensive statutory scheme regulating surrogacy. See 750 Ill. Comp. Stat. §§ 47/10 et seq. Traditional surrogacy is outlawed, but gestational surrogacy is permitted in certain circumstances. The surrogate must: be at least 21 years old, have given birth previously, have completed a medical and mental health evaluation, be represented by counsel, and be covered by a health insurance policy. The intended parent or parents must have contributed at least one gamete, have a medical need for surrogacy, have completed a mental health evaluation, and be represented by counsel. The contract must be in writing. If these standards are met, the intended parent or parents will be declared the natural parent or parents at the child’s birth.

Michigan:

In Michigan, surrogacy contracts are void because they are contrary to public policy. Mich. Comp. Laws § 722.855 A participating party is guilty of a misdemeanor punishable by a fine of up to $10,000, imprisonment for up to one year, or both. Mich. Comp. Laws § 722.859(2). A participating party includes the surrogate, both biological parents, and the spouses of any of the above mentioned individuals. Mich. Comp. Laws § 722.853(e). If someone who is not a participating party induces someone to enter into such a contract or assists in the formation of such a contract, this conduct constitutes a felony punishable by a fine of up to $50,000, imprisonment for up to five years, or both. Mich. Comp. Laws § 722.859(3).

Nevada:

Nevada allows gestational surrogacy contracts under limited circumstances. See N.R.S. 126.045. If a married couple wishes to reproduce with the assistance of a surrogate, they may enter into a contract with a surrogate. The surrogate may not be paid in excess of her medical expenses. The intended parents must provide both the egg and sperm - donor gametes are prohibited. If all of these conditions are met, the intended parents will be the legal parents of the child.

New Jersey:

New Jersey is the jurisdiction where the famous Baby M case took place. See generally, In re. Baby M., 537 A.2d 1227 (N.J. 1988). William and Elizabeth Stern wished to have a child, but Mrs. Stern was not able to carry a pregnancy. Mr. Stern entered into an agreement with Mary Beth Whitehead in which Mrs. Whitehead would agree to be artificially inseminated with Mr. Stern’s sperm, carry the pregnancy to term, and surrender the child to Mr. and Mrs. Stern. Mrs. Whitehead was to be paid $10,000 for her service.

Mrs. Whitehead became pregnant by artificial insemination with Mr. Stern’s sperm, and she gave birth to a baby girl on March 27, 1986. She named the baby Sara Elizabeth Whitehead and listed her husband, Richard Whitehead, as the father on the birth certificate. On March 30, Mrs. Whitehead reluctantly turned the baby over to the Sterns. Mr. and Mrs. Stern named the baby Melissa. Mrs. Whitehead became despondent and she pled with the Sterns to allow her to have the baby for just one week. The Sterns agreed, believing that Mrs. Whitehead would keep her agreement to return Melissa at the end of the week. Mrs. Whitehead fled to Florida, and the Sterns were unable to recover Melissa until four months later.

Mr. Stern filed a suit in New Jersey seeking to enforce the surrogacy contract. The trial court held the contract to be valid and terminated Mrs. Whitehead’s parental rights. Mrs. Stern adopted Melissa shortly thereafter. Mrs. Whitehead appealed, and the New Jersey Supreme Court ruled that the contract was invalid because it violated the public policy of the state. The Court viewed the surrogacy arrangement as akin to a private adoption. In New Jersey, consent for adoption cannot be granted prior to the birth of the child, and payment for adoption is outlawed. The Court characterized the agreement as “baby bartering.” The case was remanded to the trial court, where Mr. Stern was awarded custody, and Mrs. Whitehead was granted visitation rights.