Surrogacy and Custody Litigation

Photo of mother and child

If you're considering hiring a surrogate mother to achieve your dream becoming a parent, it's important to be aware of the issues surrounding surrogacy and custody litigation.

Legal Implications of Surrogate Motherhood

By its very nature, surrogacy challenges traditional notions of what it means to be a parent. Therefore, it should come as no surprise that this arrangement raises questions with potentially serious legal implications. For example:

  • Does surrogacy involve "selling" a child for profit?
  • Is the surrogate being unfairly coerced into the agreement?
  • Does giving birth to a baby make you the child's mother?
  • What happens if the relationship between the couple who planned to raise the baby dissolves before the surrogate gives birth?
  • Does the surrogate mother have a right to change her mind before surrendering the baby?
  • Whose rights take precedence when a child has a biological father, a biological mother, a surrogate mother, and an adoptive mother?

For additional information, check out the following links:

The Baby M Case

Melissa Stern, born March 27, 1986, earned her place in the nation's history books as "Baby M." Stern was born after Mary Beth Whitehead, a surrogate mother, was artificially inseminated with sperm from William Stern. Stern's wife was thought to be suffering from multiple sclerosis and was concerned about the medical consequences of carrying a pregnancy to term. After Whitehead gave birth, however, she refused to surrender the baby she wanted to name Sara Elizabeth Whitehead. She asserted that the Sterns would not be appropriate parents due to Elizabeth Stern's condition.

In 1987, a New Jersey court awarded custody to the Sterns. This ruling was overturned in 1988 and William Stern was given custody with Whitehead receiving regular visitation rights.

In 2004, after she turned 18, Melissa Stern opted to formally terminate Whitehead's parental rights. She then formalized Elizabeth Stern's maternity through an adoption proceeding.

Whitehead's version of the drama surrounding the surrogacy and custody litigation is detailed in A Mother's Story: The Truth about the Baby M Case.

Other Relevant Cases Regarding Surrogacy and Custody Litigation

Although the Baby M case is by far the most prominent example of the legal consequences of a surrogacy agreement, it is by no means an isolated incident. In fact, there are new cases testing the legality of surrogacy almost every year. For example:

  • In Florida, Tom and Gwyn Lamintina lost custody after their surrogate, Stephanie Eckard, decided she wanted to keep the baby. The couple had found Eckard on a surrogacy Web site and had the child through a traditional surrogacy, using Eckard's egg.
  • Danielle Bimber, a surrogate mother, won custody of triplets after courts criticized the parenting skills of the biological father. James O. Flynn and his fiancé visited the boys after they were born in 2003, but failed to return to the hospital for six days. Rather than see the children placed in foster care, Bimber took them home. Later, Jennifer Michelle Rice, the egg donor in the surrogacy arrangement, also filed a motion to assert her parental rights in the case.
  • In Las Vegas, Baby X wound up the subject of a lengthy court battle between five adults claiming to have parental rights: a homosexual father who hired a surrogate, the man's sister, the biological mother, and the boy's current foster parents.

Protecting Yourself

If you are thinking of entering into a surrogacy agreement, it's important to seek legal representation. Although there are many Web sites devoted to connecting parents and surrogate mothers, professional legal counsel is necessary to make sure the agreement is enforceable if problems should arise. Since surrogacy laws vary by state, an experienced lawyer can also make sure you are obeying all applicable regulations regarding surrogacy and custody litigation.

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Surrogacy and Custody Litigation