Surrogacy in U.S. Law Trivia Quiz

Answer: No

As is the case in many other areas of law, the issue of surrogacy is left to each individual state to regulate as their legislatures and courts see fit. For example, tort law, criminal law, commercial law, and real estate law are all overseen by each individual state (even though there may be separate federal laws in place concerning those areas).

Perhaps because surrogacy is a relatively recent phenomenon, there is no federal law regulating the issue, and each individual state gets to decide. This is why couples considering surrogacy or people interested in entering into a surrogacy agreement must carefully consider their state's laws, as they may vary significantly from one state to another.

Answer: 1970s

Generally speaking, the issue of surrogate motherhood captured international attention in the mid-1970s, primarily due to a reduction in the number of children available for adoption. According to psychologists, altruism is one of the leading motivating factors that drives women to become surrogates.

The first legal surrogacy agreement in the U.S. was brokered by Noel Keane, a Michigan attorney who obtained a law degree at the University of Detroit. Keane became a prominent figure in U.S. surrogacy law, and according to his son, the lawyer drafted at least 600 surrogacy agreements during his lifetime. Keane died of cancer in 1997.

Answer: Commercial surrogacy involves compensation

Broadly, there are two different types of surrogacy: traditional surrogacy and gestational surrogacy. The traditional type is more complex and perhaps more emotionally taxing because the surrogate's own genetic material is used to make the embryo. A gestational surrogate, on the other hand, carries the baby but bears no genetic connection to the child. The latter term describes a situation in which the woman bears a child that has been formed from the gametes of another woman and man, which are then implanted in her body.

Separate from those categories is the distinction between commercial and altruistic surrogacy. Commercial surrogacy agreements, which tend to be the most litigated ones, are those where a fee is given to the surrogate as compensation. In commercial surrogacy, the couple may not even know the surrogate and cannot necessarily control her behavior while pregnant to ensure a healthy baby (for instance: drinking, drug usage, or smoking). It may not surprise you to read that the legal status of commercial surrogacy varies by state.

As the name may suggest, altruistic surrogacy refers to an agreement in which the surrogate receives no compensation whatsoever for accepting to carry someone else's baby. An example of this type of surrogacy was featured in the American TV comedy sitcom "Friends", when Phoebe carried her brother's babies without being paid, as Phoebe's brother and his wife could not have children on their own.

Answer: Arizona

Section 218 of Title 25 of the Arizona Revised Statutes does not allow anyone to "enter into, induce, arrange, procure, or otherwise assist" in any type of surrogacy agreement. The statute unambiguously grants parental rights to the surrogate (named the "legal mother") and further establishes a presumption that the mother's husband is the father unless otherwise rebutted.

Despite the legislature's decision that surrogate childbearing contracts are legally unenforceable under any circumstances, an Arizona court allowed parties to bring forth limited evidence to rebut the presumption in favor of the birth mother's full parental rights (Soos v. Superior Court, 1994). Though the law continues to change, as written, this statute essentially outlaws any type of surrogacy in Arizona.

Answer: Michigan

The Surrogate Parenting Act of 1988 made surrogacy contracts illegal in the state of Michigan. The statute labeled these agreements as "contrary to public policy", and therefore declared all surrogacy contracts as void and unenforceable. The one exception to this rule allowed "compassionate surrogacy"; that is, entering into a surrogacy relationship without the birth mother receiving compensation. Legal experts would still advise couples in Michigan to be careful when entering into these "compassionate" agreements since the state's law provided for harsh penalties if violated.

In 2024, Michigan Governor Gretchen Whitmer signed a new law that eliminated the 1988 ban on surrogacy contracts and compensated surrogacy.

Answer: Hodas v. Morin

Hodas v. Morin was decided by the Massachusetts Supreme Court in 2004. The parties in the case (a couple that resided in Connecticut and a surrogate mother who resided in New York) had mutually agreed to enter into a gestational-carrier agreement. Because Massachusetts law was relatively friendly towards surrogacy, both parties agreed that the child would be born in a hospital in this state. The situation ended up in court because the couple filed an action in court for a judgment that would confer on them parental rights before the child was born. The Supreme Court decided that the contract's provision indicating that Massachusetts law would govern was sufficient for that state's law to apply to the agreement, instead of New York law.

The other options are famous cases in other areas of law: Roe v. Wade (1973) is a U.S. Supreme Court case that granted Americans abortion rights and was overturned in 2022; Summers v. Tice (1948) is a California tort law case that established burden-shifting rules; Boschetto v. Hansing (2008) is a case brought in federal court that explored questions of jurisdiction.

Answer: Adoption of the child

New Jersey is one of the states where surrogacy law has received the most attention, perhaps because of the widely publicized legal battle between Mary Beth Whitehead and the Stern family. A 2011 case heard in the Appellate Division of New Jersey's Superior Court decided that maternity rights in applicable surrogacy cases could only arise if the mother legally adopted the child.

In other words, regardless of where the genetic material used to make the embryo came from, a mother with no genetic connection to the child she gives birth to has to go through the adoption process if she wants to be recognized as a legal parent.

Answer: Illinois

Since 2005, the Gestational Surrogacy Act has been a part of the Illinois Compiled Statutes and is therefore the governing law for surrogacy agreements in the state. The Act explicitly states that the guidelines that it sets forth are intended "to facilitate the use of this type of reproductive contract".

The law requires that the intended parents (those who would ultimately raise the child) gain full parental and custody rights immediately upon the birth of the child. The law also states several requirements that a surrogate must fulfil before executing a contract: she must be over 21, complete medical evaluations, and receive independent advice from a lawyer.

Answer: California

California allows certain types of surrogacy agreements, as long as parties are property represented by attorneys. Because the law in this area is constantly changing, it is hard to point to a specific statute. However, the California Family Code does say that certain surrogacy agreements are valid and will be enforced by courts.

In the controversial 1993 case of Johnson v. Calvert, the Supreme Court of California was confronted with an uncomfortable situation: a couple signed a surrogacy agreement with another woman, and upon the child being born, that child would go home with the couple. As is somewhat common in these cases, the surrogate mother changed her mind and wanted to keep the child. The Court reasoned that the decision in granting parental rights was to be based on the intent of the parties as embodied in the contract, and awarded the couple full parental rights.

In her dissent, Justice Kennard argued that both parties involved in this controversy had parental rights over the child, and that the "intent test" set out by the majority opinion should not be used.

Answer: Baby M case

This hugely controversial case began with the signing of a surrogacy agreement between William Stern and his wife and Mary Beth Whitehead (the surrogate), arranged by Noel Keane's Infertility Center of New York. Even though Whitehead had agreed to surrender the child and any parental rights as soon as it was born, she changed her mind and refused to abide by the agreement. The case received media attention particularly because of Whitehead's actions, such as threatening to commit suicide and kidnapping the child.

After a New Jersey Superior Court judge awarded custody to the Sterns, the case ended in the New Jersey Supreme Court in 1987. The case's name was "In re Baby M" ("in re" stands for "in the matter of"), which is why the dispute became known simply as "Baby M" or "the Baby M case". The baby was ultimately named Melissa. The Supreme Court, led by Justice Wilentz, decided that surrogacy contracts were void because they contravened public policy, which favored the position held by Whitehead. Regardless of this decision, a lower court, however, gave the Sterns custody rights over Melissa.