Surrogacy is a form of assisted reproduction in which a "surrogate" is a woman who bears a child on behalf of someone else. There are two types of surrogacy. First, is a surrogate where a woman is artificially inseminated with sperm and reproduces using her own egg. Second, there is gestational surrogacy where the surrogate carries an embryo made up of the egg of the intended mother and the sperm of the intended father.

Generally, the intended parent(s) pays the surrogate a fee in exchange for carrying the child. The problem with this approach is that the surrogate mother may still have a right to invalidate her adoption consent within the specified amount of time -- generally about 90 days -- thus avoiding any adoption.

If you enter a surrogacy contract with another woman and she subsequently chooses not to follow through, then your only recourse is to take her to court and sue for breach of contract. Unfortunately, it may not be clear state whether such contracts will be upheld as the laws governing surrogacy are very state specific. The law of three different states demonstrates the difficulty in determining whether these agreements will be upheld.

The state of New Jersey has declared surrogacy contracts to be void as against public policy, California has deemed invalid and Minnesota refuses to rule on the issue at all.

New Jersey
In the case of a Baby M, the New Jersey Supreme Court reviewed a dispute between a surrogate and the coupled contracted with her to produce a child for them using the husband's sperm. The couple paid a surrogate $10,000 in exchange for her agreement to carry the baby on their behalf.

The New Jersey Supreme Court felt that the $10,000 compensation amounted to baby selling, which is prohibited by New Jersey law. So, the court held that the service agreement was invalid and unenforceable as a matter of public policy, and the baby’s legal parents were the surrogate mother and the genetic father. As recently as 2009, a New Jersey judge has held that the Baby M ruling also applies to gestational surrogates as well as genetic surrogacy.

California
A string of cases in California have given "intended parents" strong rights where they have used a surrogate. In 1993, the California Supreme Court held that the intended parents in a gestational surrogacy agreement should be recognized as the natural and legal parents. The court decided that the person who intended to procreate - in this case, the mother who provided her egg to the surrogate - should be considered the natural mother.

Then in 2005 the California Supreme Court held that under the Uniform Parentage Act, two women could be the legal parents of a child produced through surrogacy. Thus, in California, both gay and straight women who seek to have a child through surrogacy are offered strong protections as the intended parent.

Minnesota
My home state of Minnesota recently stated that a woman who entered into a surrogacy contract with two gay men was the legal and biological mother of that child. However, the court granted sole legal and physical custody to the father whose sperm was used for the pregnancy. The surrogate in this case attempted to claim, as in the Baby M case, that the surrogacy agreement was invalid under Minnesota law. But, the Minnesota court has never actually addressed the validity of surrogacy agreements and, in this case, continued to refuse to do so.

So, it is still unclear Minnesota whether person entering a surrogacy agreement will have that agreement upheld in a lawsuit.

Before moving forward with surrogacy or gestational carrier in producing your family, please be sure that you meet with an attorney who is knowledgeable about donor or surrogate law in your state.

A previous post from Chris:
Choosing the guardian for your child