Chapter 7.D.4 (or 5.D.4) -- Womb and Ovum Donors


Notes: Traditional and Gestational Surrogacy


Note 1. One Plus One Equals Three?


The Tennessee Supreme Court recently heard a case challenging the maternity of a woman who gave birth to a child who had been conceived using a donor egg. In re C.K.G., 2004 Tenn. App. LEXIS 394 (Tenn. Ct. App.), appeal granted, 2004 Tenn. LEXIS 1122 (2004), affirmed in part, vacated in part, 173 S.W.3d 714 (Tenn, 2005). A man and woman in their forties used a donor egg to conceive triplets. The woman sought custody of the children when the couple separated. Her former partner objected, asserting that the women was “not the mother or a legal parent of the children because she was merely a gestational surrogate who has no genetic tie to the children.” 2004 Tenn. LEXIS 1122 at *1-2. The trial court held that the woman was the legal mother, the appeals court affirmed “based on the intent of the parties.” Id. The Tennessee Supreme Court vacated the holding that the man was estopped from denying the woman’s maternal status but affirmed that the woman was the legal mother and her fitness as a mother. See Rob Johnson, Brentwood triplets in test-tube custody fight, The Tennessean , January 18, 2005, at A1 (no col.) (available on LEXIS/NEXIS).


Note 5. Surrogacy and Intentional Parenting.


In R. v. Utah, 261 F. Supp. 2d 1268 (2003), the plaintiffs sought to establish that the biological parents were the legal parents of twins born as a result of a gestational surrogacy agreement, despite a state law which appeared to make the birth mother the legal mother of the resulting child. The district court found that the plaintiffs lacked standing to challenge one portion of the Utah statute:

The Utah surrogacy statute, Utah Code Ann. § 76-7-204 (1999), does not prohibit use of gestational surrogacy as a procreative method, or deny persons access to that medical technology. . . . It is uncontroverted that plaintiffs utilized this method to accomplish the birth of twin children, and to that extent, have effectively exercised their rights to procreate.

Id. at 1279. The plaintiffs did not have standing to challenge Utah’s ban on enforcing surrogacy agreements because their complaint did not actually ask the court to enforce any particular provision of their gestational surrogacy contract. The court did permit the plaintiffs to challenge another key aspect of the statutory scheme – the provision which appeared to make the birth mother the legal mother of the child, even where the parties intended a gestational surrogacy arrangement:

[] Utah Code Ann. § 76-7-204(3)(a) provides that "the surrogate mother is the mother of the child for all legal purposes, and her husband, if she is married, is the father of the child for all legal purposes." In contrast to § 76-7-204(2), this provision may bear directly upon the question whether J.R. and M.R. may be "legally... acknowledged as parents of their own children." (Pltfs' Reply/Resp. Mem. at 3 P. 7.) Plaintiffs have alleged the requisite "injury in fact" that affords them standing to pursue their constitutional challenge to this statutory presumption.

There have been no other reported decisions in this case.