Landmark Fertility Cases

W A S H I N G T O N, August 28, 2001 -- 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.

Other Cases in the State Courts

The Beasley case (2001).

Helen Beasley is a 26 year old British woman who was hired to carry to term a child intended for a California couple for nearly $20,000. Beasley discovered 8 weeks into her pregnancy that she was carrying twins. Her contract with the couple stipulated that she would undergo a "selective reduction" if she became pregnant with more than one fetus. Upon learning that about the twins, the couple arranged for Beasley to "reduce" the number of fetuses by one. Beasely refused on the grounds that she was too far into the pregnancy to undergo the procedure. Effectively, these actions could have amounted to the couple requiring an abortion of an unwilling mother.

Beasley acknowledges that she has no legal rights to the children, but now does not want the intended couple to have them. "I believe these parents have made it expressly clear that they have not wanted these children." Another couple has taken over the surrogacy contract.

The Buzzanca case (1998).

In this unusual California case, a complicated intersection of surrogacy contracts and artificial inseminations left an unborn child legally parentless. The Buzzanca couple agreed to have an embryo genetically unrelated to them implanted in a surrogate mother who would carry the child to term for them. Shortly before the baby was born, Mr. Buzzanca filed for divorce. He claimed that there were no children born to the marriage and that he was not responsible for the child born to the surrogate, financially or otherwise.

The case was brought to trial in a California lower court, who was responsible for determining who the lawful parents of the child were. The court at first concluded that the child had no lawful parents because the intended couple had no biological relationship to the child. An appellate court eventually overturned this decision, finding the Buzzancas the legal parents, stating that a genetic tie is not determinative and that rather the intention of the parties is controlling. Luanne Buzzanca now has custody of the child, and her ex-husband is paying child support.

The Fasano case (1999).

In this New York case, Donna and Richard Fasano contracted with a fertility clinic to implant two of their fertilized eggs into her uterus. Nine months later, she had twins. One was white and the other black. The clinic had mixed up its fertilized eggs, implanting one of theirs and one belonging to a black couple. The Fasanos eventually had to turn over the baby to its biological parents, but sued for visitation rights. The court decided that Donna's motherhood was only "nominal" and denied the Fasanos visitation. Now the biological parents are suing the fertility clinic for negligence.

This case was viewed partly in terms of property rights, bringing the following question to the fore: Are frozen embryos in a lab's test tube "people" or are they "property?" If embryos are property, they can be awarded to either person in a divorce, like any asset; if they are people, then custody laws become relevant, and an important factor is who the better parent will be.

The Turczyn case (1997-8).

Debbie and Michael Turczyn were separated in 1996 when she decided to become artificially inseminated by an anonymous sperm donor. The couple reconciled, and with Michael's support, Debbie gave birth to quadruplets. Nine months later, Michael moved out again and Debbie filed for divorce. She sued him for child support. A lower court and the Pennsylvania Superior court ordered that Michael had held the children to be his own throughout the pregnancy, and that in this case, conduct trumped biology.

Michael and his lawyer appealed to the Pennsylvania Supreme Court, who refused to hear the case again. The court held that the lower courts were right in finding that Michael was the legal father by reasons of estoppel. There are no legal guidelines in terms of how long a person has assumed a parental role before being considered a legal parent. As Michael's lawyer says, "It's a case by case basis, which leaves plenty of room for a judge's discretion. One judge might say four months is absolutely too short a time, another judge may say five years is too short a time."

Lesley Blum is a researcher for Nightline.