Heather A. Crews 1

This Recent Development proposes that California's new precedent for deciding maternity disputes arising pursuant to gestational surrogacy arrangements weakens legal protections afforded to the following populations: women who choose to donate eggs without becoming mothers, women who serve as gestational surrogates to friends or family members, and women who accept egg donations without also accepting the donor as a co-parent. The rule of law previously applied to surrogacy disputes as articulated in Johnson v. Calvert protects the interests of parties creating families through surrogacy while preserving one of the few procreative methods available to lesbian couples. The Johnson intent standard should not be limited by the Supreme Court of California's holding in K.M. v. E.G.

Cite as 7 N.C. J.L. & Tech. 1 (2005) | Download PDF

I. Introduction

Advances in Artificial Reproductive Technologies (“ART”) are revolutionizing the ways in which parents create families.2 The increasing use of in vitro fertilization, embryo and gamete freezing and storage, gamete intra-fallopian transfer, and embryo transplantation now make it possible for a child to have at least five different parents.3 Gestational surrogacy, in particular, is rapidly gaining both popularity and societal acceptance as a method of assisted reproduction.4 Gestational surrogacy involves two types of ART: in vitro fertilization and embryo transplantation.5 In a typical arrangement, a female donor's egg is harvested and inseminated outside of her body.6 The fertilized egg is then implanted in a second woman, who carries the child to term and gives birth.7 The division of the reproductive functions in such arrangements separates the female procreative role into two distinct elements: genetic and gestational.8 The woman who contributes the egg is referred to as the “genetic mother” and the woman who carries the pregnancy and gives birth is the “gestational mother.”9 In many gestational surrogacy arrangements, one woman relinquishes her parental rights as part of a contractual agreement with the woman who intends to parent the child after birth.10 However, if either of the two women have a change of heart during or after the pregnancy, the courts must determine which woman is the mother under law.

The courts' struggle to apply existing legal frameworks to the complex familial arrangements made possible through ART has been well documented.11 In light of technological advances, however, it is important to consider not only how the law adapts to changes in technology, but also how the courts respond to new trends in the groups who utilize these technologies. This Recent Development focuses on a rapidly emerging legal trend in the use of ART: disputes in which the parties to a gestational surrogacy arrangement were formerly part of a committed lesbian relationship. Advances in egg harvesting and implantation techniques (coupled with greater social acceptance of nontraditional families) have led to a growing trend of lesbian couples using this technique to create children.12 Gestational surrogacy arrangements appeal to lesbian couples because any children born as a result will have a connection to both partners through either genetics or gestation. Indeed, this technique may provide the only method for same-sex couples to have a child with a biological connection to both women.13

K.M. v. E.G.14 is the first custody dispute between an egg donor and a gestational mother who were part of a lesbian relationship to reach the highest court of any state.15 On August 22, 2005, the Supreme Court of California held that both the genetic mother and the gestational mother who agree to bring children into the world through ART can be full legal parents.16 In so doing, the court diverged significantly from a standard formerly applied in gestational surrogacy disputes between heterosexual couples and gestational surrogates.17 This Recent Development proposes that California's new precedent applied to gestational surrogacy arrangements weakens legal protections afforded to the following populations: women who choose to donate eggs without becoming mothers, women who serve as gestational surrogates to friends or family members, and women who accept egg donations without also accepting the donor as a co-parent. The rule of law previously applied to surrogacy disputes as articulated in Johnson v. Calvert18 protects the interests of parties creating families through surrogacy while preserving one of the few procreative methods available to lesbian couples. This rule should not be limited by the Supreme Court of California's holding in K.M. v. E.G.