Reproductive Rights

Legal issues related to surrogacy and in-vitro fertilization have been addressed by the courts on a case by case basis. In 1985, William and Dr. Elizabeth Stern contracted with Mary Beth Whitehead to be a "surrogate mother." Under the terms of the contract, Whitehead would be artificially inseminated with Stern's sperm making Whitehead the child's biological mother. Whitehead agreed to give the child to the Sterns after giving birth, relinquishing her parental rights. The Sterns agreed to pay Whitehead $10,000 plus her medical bills.

When the child was born, Whitehead refused to give the child to the Sterns. The Sterns sued for custody. The case, which became known as In re Baby M, was publicized nationwide in the mid-1980s. The New Jersey State Supreme Court ruled that the contract was invalid. The court ruled that payment to a "surrogate mother" was illegal because it constituted child selling and granted parental rights to Mr. Stern and Mrs. Whitehead.

Since both William Stern and Mary Beth Whitehead had parental rights to Baby M, the court had to resolve the issue of custody in accordance with the best interests of the child. When a court order gave Stern temporary custody of Baby M, Whitehead and her husband fled with the baby. Because of the Whiteheads' behavior and financial instability, the court awarded custody to Mr. Stern. However, Mrs. Whitehead was granted visitation rights.

Early in 1999, a California appellate court ruled on the highly publicized "parentless child" case. In In Re Marriage of Buzzanca, a married couple, John and Luanne Buzzanca, arranged a surrogacy contract in which an anonymous egg and sperm were implanted in a surrogate mother's womb.

One month before the child's expected birth, the Buzzancas separated and petitioned for divorce. When the child (Jaycee) was born, the hospital released the child to Luanne Buzzanca in accordance with the surrogacy contract. She then filed for child support payments from John Buzzanca. He convinced the trial court that support payments could not be ordered because the baby was not the "child of the marriage" pursuant to California Family Code Section 2010. The appellate court disagreed and ordered the family law court to determine an appropriate child support order. After a three year battle, the appellate court ruled that John Buzzanca and Luanne Buzzanca are the legal parents of Jaycee.

The appellate court in Buzzanca relied on Johnson v. Calvert (1993), in which the California Supreme Court first upheld the legality of a gestational surrogacy contract. The Johnson case ruled that, according to the California Uniform Parentage Act, both the intended mother and the gestational mother could establish parentage. The intended father was also ruled a potential parent by the action of entering into the surrogacy agreement. The court explained that: "John admits he signed the surrogacy agreement, which for all practical purposes caused Jaycee's conception every bit as much as if he had caused her birth the old fashioned way."

In Moschetta v. Moschetta (1994), a surrogate mother was artificially inseminated with the sperm of the intended father. The surrogate was the biological mother as well as the birth mother, and sought custody after the intended father left her with the child. The court did not recognize the surrogacy contract as an advance waiver of the surrogate's parental rights and looked instead at the parties' intent at the time of the contract to determine parental rights.

Reproductive rights related to surrogacy and in-vitro fertilization often involve legal and ethical issues which the courts cannot address with broad rulings. The particularities of the cases usually dictate the rulings. Other reproductive rights issues such as abortion and the use and dissemination of contraceptives lend themselves to more definitive judgments by the courts. As new medical technologies are developed, the courts will continue to be called upon to resolve complex legal issues related to reproductive rights.