Gestational Surrogacy: Unsettling State Parentage Law and Surrogacy Policy


Recent advances in reproductive technology have made it possible for two women to share the role of biological mother. This possibility, embodied in the practice of gestational surrogacy, raises a question which the parentage laws of most states do not answer: how should maternal rights be determined when one woman supplies an ovum, another gestates and gives birth to the child, and both claim right to a legal mother and child relationship? That question lies at the heart of this Note. The answer is important: It determines the rights and obligations of individuals involved in disputed gestational surrogacy agreements; it is key to evaluating state policy regarding the validity and enforceability of surrogacy contracts in general; and it bears on related questions raised by various forms of assisted reproduction.

The issue of parental rights is particularly pressing in the surrogacy context because of the tremendous stakes riding on a determination after a child is born. The need for prospective guidance and retrospective fairness calls for the development of law along carefully reasoned lines. In a number of ways, surrogacy law to date has not heeded this call.

Before that claim can be explained, some groundwork must be laid with respect to basic terms and concepts. A brief survey of collaborative arrangements will familiarize the uninitiated reader with the forms and benefits of the practices discussed. The Note will then survey the current landscape of surrogacy law to set the stage for a critique of its treatment of gestational surrogacy and maternal rights.

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Panel I: Defund Means Defund Andrea Ritchie (she/her) is a Black lesbian immigrant whose writing, litigation, and advocacy has focused on policing of women and LGBT people of color for the past two decades. She is currently a researcher with