In 1988, the New Jersey Supreme Court handed down one of the first decisions in the country concerning surrogacy contracts. The In re Baby M. (537 A.2d 1227, 109 N.J. 396) case held the surrogacy contract between Mary Beth Whitehead and William Stern was illegal and unenforceable as against public policy. Whitehead initially entered into a contract to conceive and bear a child (by artificial insemination) with Stern, and then relinquish her maternal rights in order for the child to be adopted by Stern’s wife and raised by the Sterns family. The Court compared the surrogacy contract to the sale of a child, which is prohibited by New Jersey laws regulating adoption. On remand, the lower court awarded Sterns custody and Whitehead visitation rights. In 2009, Superior Court of New Jersey expanded the Baby M. precedent beyond a genetically related surrogate mother (where surrogate provides the egg) and declared gestational surrogacy (where the egg is provided by a donor) contracts to be a violation of public policy (A.G.R. v. D.R.H & S.H).

Some American states ban surrogacy outright, while others rely on case law. Only a few set out clearly who is the parent of a child born of a surrogate mother. Similar to New Jersey, New York laws on surrogacy contracts are rigid – in1992, New York’s legislature declared surrogate parenting contracts void and unenforceable as contrary to public policy and prescribed civil and criminal penalties for entering into surrogacy contract involving any fees. N.Y. Domestic Relations Law §122, 123.… <Read More>