Remedying Breaches of Surrogacy Contracts

If a surrogate decides to keep the baby, what should be the remedy given to the intended mother? Currently, the courts focus upon adjudicating maternity and ignore the contract that resulted in the child's consumption. It seems unfair not to order the contract to be specifically enforced.

Should We Regulate Reproductive Technology

As the law stands, a child as young as 16 and a woman as old as 70 can both conceive a child using reproductive technology. I am not sure that this is in the child's best interests. However, I am not sure if the law should dictate a person's reproductive choices. Traditionally, courts intervene in parent-child relationships only after the birth of the child.

Motherless by Design

Katherine Jackson is seeking to be named the guardian of Michael Jackson's three children. In the petition, Debbie Rowe is listed as the mother of the oldest two children. The mother of the third child is listed as "None". When Michael died, his children became fatherless. However, his third child was born legally motherless. Katherine is in poor health. Given her age, it may be difficult for her to raise three children. Debbie Rowe would like to have custody of her two children, and the nanny wants custodyof the third child. Should the court give the surrogate, who is the biological mother, the opportunity to be recognize as the legal mother?

Should Biology Matter?

I just finished reading an article advocating that the word parent be redefined to include any one who has an active role in the child's life. According to the article, the suppliers of the eggs and sperms that created the child should have no more rights to the child than a person who develops a social relationship with the child. In the context of my own writing, I thought about how maternity should be determined in surrogacy arrangements. Should the woman who is biologically linked to the child always be presumed to be the child's legal mother? Some courts have said yes.

How Should We Determine Maternity?

Courts have used several tests to determine the legal mother of a child created as the result of a surrogacy arrangement. One test is the intent test. Under that test, the contracting woman is recognized as the legal mother of the child even if she has no genetic relationship to the child.

The Little Old Woman Would Be Confused

As a child, I remember my mother telling us about the little old woman who lived in a shoe who had so many children that she didn't know what to do. The world has changed. Today, I could tell my nieces about the little girl who has so many parents that she doesn't know what to do. We live in a world where it is possible for a child to have as many as six legally recognized parents. Consider the following scenario:

Married couple, A and B contract with C to conceive a child using assisted reproduction technology. Neither A nor B is able to contribute genetic material for the procedure, so C is impregnated with sperm donated by D, a family friend of A and B, and eggs donated by E. C's husband consents to the procedure. A and B are the intended parents, so they may be considered to be the legal parents of the child. E's eggs contributed to the conception of the child; therefore, she is the biological parent. C is the child's gestational mother, so she may be recognized as the child's legal parent. The child was conceived during C's marriage to F and F consented to the procedure. Hence, F may be presumed to be the child's legal father. Finally, as a known sperm donor who contributed to the creation of the child, D is the child's biological father and may also be deemed to be the child's legal father. I failed to mention that, at the time of the child's conception, E or D could already be dead.

This would make a great science fiction movie. However, the situation is real and could have a profound impact on family law and inheritance law. In spite of the significance of the situation, the assisted reproduction area is largely unregulated.

Who or what is a mother?

Aristotle stated ,"Mothers are fonder than fathers of their children because they are more certain they are their own." The use of assisted reproduction to create children has removed the certainty mentioned by the great philosopher.


Recently, the parents of a dead soldier received a court order to permit them to have sperm extracted from his corpse. After obtaining the sperm, the parents selected a woman to give birth to their dead son's child. The grandparents plan to raise the child as their own and the woman has agreed to have her parental rights terminated. What happens if the woman changes her mind and decides to retain possession of the child? In a custody battle between a biological parent and grandparents, the biological parent usually wins. What happens if the grandparents die while the child is still a minor? Should the woman be permitted or forced to step in and raise the child? The answer depends or whether or not the biological mother is recognized as the legal mother of the child. Courts are currently grappling with that question. Several tests have been used to reach an answer and there is not a true consensus.