Landmark Fertility Cases

W A S H I N G T O N, August 28 -- As reproductive biotechnology has become increasingly sophisticated over the last two decades, the nation's state courts have been inundated with complicated cases involving surrogacy, fertility, property rights, paternity and child support issues. Since the 1980s, when the earliest major cases brought these issues to the national consciousness, lawyers, parents, theologians and bioethicists have agonized over the legality and morality of enforcing contracts for the sale of babies.

Landmark Cases

The watershed Baby M case, which took place in 1987 in New Jersey, was the first major legal skirmish concerning surrogate parent arrangements. Mary Beth Whitehead had contracted with William and Elizabeth Stern to act as a surrogate mother for them. She was impregnated with an embryo (made by her egg was fertilized with Stern's sperm), and after carrying the child to term, she had a change of heart about handing the baby over to the couple.

Whitehead sued for custody of the child. Ultimately, the New Jersey Supreme Court declared that blood was thicker than paper: it ruled her contract with the intended parents invalid. The court stated that the government could not enforce a contact that orders a fit and loving mother to give away her child. Whitehead was denied custody, but granted visitation rights.

Another case heard by a state Supreme Court took place in California in 1993. Johnson v. Calvert resulted in a contrasting ruling to the Baby M case. Mark and Crispina Calvert hired Anna Johnson to carry to term their genetic child. Johnson ultimately sued for custody of the child. In a 6-1 decision, the California Supreme Court ruled that Johnson had no parental rights to the child.

This was the first time a state high court enforced a surrogacy contract. "It is not the role of the judiciary to inhibit the use of reproductive technology when the legislature has not seen fit to do so," wrote Justice Edward Panelli for the majority. The court's only woman, Justice Joyce Kennard, wrote in a sharply worded dissent: "A pregnant woman is more than a mere container or breeding animal; she is the conscious agent of creation no less than the genetic mother, and her humanity implicated on a deep level. Her role should not be devalued." The court has reaffirmed this finding several times since 1993.