Thanks to Andrea B. Carroll, C.E. Laborde, Jr. Professor of Law, Paul M. Hebert Law Center, LSU writing on the Family Law Prof Blog for the following analysis and commentary concerning surrogacy issues and problems faced by gay and lesbian families seeking to have IVF or surrogacy agreements in order to raise children in their families. Professor Carroll writes:
"Joanna Grossman (Hofstra University School of Law) has recently posted an excellent two-part commentary on whether the Baby M decision should survive, particularly in the context of a recent New Jersey case. The case involves two gay men who were legally married. One of the men provided sperm and a donor egg was used, with the resulting embryo implanted into the (non-egg donor) surrogate. After twin girls were born, the surrogate sought a judgment that the surrogacy agreement she signed relinquishing her rights was a nullity and that she was entitled to parental rights. The trial court agreed, resting on Baby M. Grossman argues that Baby M should be revisited in light of distinctions between its facts and those in the most recent case and reproductive advancements since the Baby M decision.
'But should Baby M. still carry the day? More than twenty years later, with tremendous advances in reproductive technology (including the ability to conceive children after the death of their biological parents), dramatic increases in the number of same-sex couples having and raising children, and the ever-widening variety of family forms, the ruling itself seems dated.
'Would the New Jersey Supreme Court have ruled the same way if Baby M. had not been genetically related to Mary Beth Whitehead? Maybe not. The court's language in that case is laden with assumptions about the prenatal bond between mother and child and the "devastation" to women who irrevocably consent to give up their babies. The opinion is couched in terms of "mother" and "child". But is a gestational surrogate truly the "mother" of the child she carries – even if she has carried the child with full knowledge that it is not in any way genetically hers? Do women who relinquish a child have a similar experience regardless of whether they are genetically related to the child?
'These seem to be open theoretical and empirical questions that are worthy of serious consideration by the New Jersey Supreme Court, or by the state's legislature.
'As is often the case with family law, social change and science have clearly outpaced the law in this context. Reasonable minds may differ on how to answer the basic legal questions surrounding surrogacy, but individuals who wish to utilize surrogacy to become parents deserve renewed attention to the issue, so that they may have certainty as to whether the child they are joyfully expecting will be legally their own.' "