Also known as:genetic surrogate · traditional surrogacy
Written by attorneys — see sources below.
A woman who is not an intended parent and who agrees to become pregnant through assisted reproduction using her own gamete under a genetic surrogacy agreement. The agreement must satisfy statutory requirements for execution and validation to determine resulting parentage under applicable state law.
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Common Examples
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Parentage Determination After Surrogacy Birth
Glenn Gross and Gwen Gallagher entered a genetic surrogacy agreement with Greta Goldstein under which Greta would use her own egg fertilized by Glenn's sperm. After the child was born, a dispute arose over whether Glenn and Gwen held legal parent status for inheritance purposes. The court applied the jurisdiction's assisted-reproduction and surrogacy parentage statutes to resolve the competing claims rather than default birth or genetic presumptions alone.
Enforceability of Traditional Surrogacy Contract
Gerald Gibson and Gabriella Gomez contracted with Gina Gray for a genetic surrogacy arrangement using Gina's own gamete. After the child arrived, Gina refused to relinquish parental rights and sought custody. The court examined whether the traditional surrogacy agreement was enforceable under state law governing such arrangements.
In re Marriage of Moschetta30 Cal. Rptr. 2d 893, 900 (Cal. App. 1994)
In February 1989 Robert and Cynthia Moschetta met with a surrogacy broker in Los Angeles who introduced them to Elvira Jordan. In late June and early July 1989 the Moschettas and Jordan signed an agreement under which Jordan would be artificially inseminated with Robert Moschetta's semen, Robert would obtain sole custody of any resulting child, Jordan would terminate her parental rights and assist Cynthia in adopting the child, and the Moschettas would pay Jordan $10,000.
Jordan became pregnant in November 1989. By January 1990 the Moschettas' marriage was troubled, and in April Robert told Cynthia he wanted a divorce. Jordan learned of the problems on May 27 while in labor and delivered baby Marissa the next day. After initially refusing Robert access to the infant for two days, Jordan allowed the Moschettas to take Marissa home on May 31 after they promised to remain together.
The marriage continued to deteriorate. On November 30, 1990 Robert left the residence with Marissa. Cynthia filed a petition for legal separation and a petition to establish custody of Marissa on December 21, 1990, followed on January 11, 1991 by a petition alleging she was Marissa's de facto mother. In February Jordan sought to join the dissolution action. The actions were consolidated and ordered trifurcated for trial, which commenced April 1991.
At trial no party sought enforcement of the surrogacy contract and all agreed it was unenforceable. The December 1992 judgment declared Robert Moschetta and Elvira Jordan the legal parents of Marissa and awarded them joint legal and physical custody. Robert appealed, challenging Jordan's status as legal mother and the custody order, and now contends the contract should be enforced.
How does a court determine parentage when a child is born to a genetic surrogate?
The court applies the jurisdiction's assisted-reproduction and surrogacy parentage statutes. These statutes focus on intended-parent status, consent, and compliance with statutory procedures rather than birth or genetics alone.
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What distinguishes a genetic surrogate from a gestational surrogate?
A genetic surrogate uses her own gamete to become pregnant. A gestational surrogate carries an embryo created with gametes that are not her own.
Supporting sources
Must a genetic surrogacy agreement receive court validation to be enforceable?
Yes. To be enforceable a genetic surrogacy agreement must be validated by the designated court before assisted reproduction begins. The court issues a validating order only after finding that statutory requirements have been met.
Supporting sources
12 A.3d 783 (Conn. 2011)
…mother) carries the fetus and gives birth to the child." Id. Black's Law Dictionary distinguishes "gestational surrogacy" from "traditional surrogacy," by defining the latter as "[a] pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, and carries the fetus and gives birth to a child for…
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