Mitchell Hamline School of Law
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e Use of Prebirth Parentage Orders in Surrogacy
Proceedings
Mary P. Byrn
Mitchell Hamline School of Law,!06/!2"60-,)2#(%++(!,+)-%%$3
Steven H. Synder
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e Use of Prebirth Parentage Orders in Surrogacy Proceedings
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The Use of Prebirth Parentage Orders in
Surrogacy Proceedings
STEVEN H. SNYDER* & MARY PATRICIA BYRN**
I. Introduction
The evolution of legal procedures to implement and ratify the intent of
the parties to surrogacy
1
agreements across the United States has been
patchwork, at best. Competing social, moral, and political interests
regarding the use of third-party reproduction
2
have led to widely varied
legal approaches and guidelines across the country, with each state having
its own unique legal climate regarding such proceedings.
3
Still, couples
* Practices with Steven H. Snyder & Associates in Minneapolis, Minnesota. Mr. Snyder
has practiced law in the area of assisted reproduction for more than fifteen years and is Vice
Chair of the Reproductive and Genetic Technologies Committee of the American Bar
Association Family Law Section for 2005–06.
** Visiting Assistant Professor, University of Minnesota Law School.
1. The terms used to identify women who act as surrogates are widely varied and can easily
become confusing. Some professionals use the term “surrogate” only to refer to a woman who
provides her own ovum (egg) and gestates a child for another woman who is the intended mother
of the child (also referred to as “artificial insemination (or AI) surrogacy”). These professionals
use the term “gestational carrier” to refer to a woman who gestates a child for another woman who
is the intended mother of the child using either the intended mother’s or a donor’s egg (also referred
to as “in vitro fertilization (or IVF) surrogacy”). For simplicity sake, we refer collectively to all
women who gestate a child for another woman who is the intended mother as “surrogates,” dis-
tinguishing between the two types by referring to them as “traditional surrogates” (those who
use their own egg) and “gestational surrogates” (those who use the intended mother’s or a
donor’s egg).
2. “Assisted reproduction” refers to and encompasses any procedure by which an intended
parent attempts to conceive a child by means (usually, but not necessarily, a medical procedure)
other than sexual intercourse. “Third-party reproduction,” also referred to as “collaborative
reproduction,” refers to such procedures in which the egg, sperm, or uterus of a third party is
used to achieve a pregnancy.
3. Twenty-two jurisdictions have passed statutes that directly or indirectly address surro-
gacy or a surrogacy-related issue (such as issuance of birth records or the effect of compensation
in surrogacy arrangements). Five other jurisdictions have appellate court decisions that address
633
39 FAM. L.Q. 633 (Fall 2005). A publication of the ABA Section of Family Law. © 2005 American Bar
Association. All rights reserved.
This information or any portion thereof may not be copied or disseminated in
any form or by any means or downloaded or stored in an electronic database or
retrieval system without the express written consent of the American Bar
Association.
634 Family Law Quarterly, Volume 39, Number 3, Fall 2005
and individuals in virtually every state are seeking out and entering into
surrogacy arrangements. In addition, they are contacting attorneys in every
state, either before or after they have entered into such an agreement or a
pregnancy has occurred, for advice and assistance in implementing these
agreements and ultimately establishing parentage and birth records as the
parties originally intended. The legal procedures used and the law that
governs these agreements depend on in which state(s) the respective parties
reside, which state’s law applies, and, sometimes, in which county the pro-
ceeding is venued and which judge is presiding over the matter. The legal
posture and success of these cases is also significantly affected by whether
the parties are in unanimous agreement or are contesting the matter.
As a result, attorneys practicing assisted reproduction law are much
like the early aviation inventors during the advent of the twentieth century.
Early aviators were approaching the challenge of human flight from many
different observational and experiential backgrounds that resulted in
many diverse aircraft designs, some of which worked to varying degrees
and some of which did not. Similarly, today’s family law practitioners are
also approaching assisted reproduction from many different practice
backgrounds and utilizing different legal procedures to accomplish the
goals of participants in surrogacy proceedings in various jurisdictions,
some of which work to varying degrees and some of which do not.
Therefore, the legal procedures not only vary from state to state, but they
often also vary from attorney to attorney, particularly in jurisdictions in
which there are no statutes or precedent as to how to proceed in a surro-
gacy matter.
One legal procedure that some attorneys practicing assisted reproduction
law are attempting to use to formalize the intent of the parties to a surrogacy
agreement is to obtain a prebirth parentage order in which the intended
parents are declared the legal parents before the child is born. There are
numerous benefits to such prebirth orders. First and foremost, the intended
parents are determined to be the legal parents of the child before the child’s
birth, thereby giving them immediate and sole access to and control over
the child and its postnatal care and medical treatment when it is born. This
also allows the names of the intended parents to go on the original birth
records at the hospital and the governing department of health, avoiding
the process of amending the birth certificate and the existence of a sealed
the validity or enforceability of surrogacy agreements. Of these twenty-seven jurisdictions with
statutes and/or case law affecting surrogacy, twenty-two expressly or impliedly permit the
enforcement of some sort of surrogacy arrangement, whereas only five generally prohibit them
altogether. The remaining twenty-four jurisdictions have no statutes or case law regarding sur-
rogacy, so such agreements are not expressly allowed, prohibited, or regulated in these states.
These various jurisdictions will be discussed infra. See also Appendix.
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 635
original birth certificate.
4
The determination of parentage before birth also
allows the hospital to discharge the child directly to the intended parents
rather than to the surrogate, thereby avoiding the awkward circumstance
of the surrogate carrying the child out of the hospital only to deliver it into
the physical custody of the intended parents at the curb. A prebirth deter-
mination of parentage may also have a solidifying effect on the child’s
insurance coverage under the intended parents’ health insurance policies.
5
Finally, from a purely emotional and psychological perspective, a prebirth
determination of parentage permits the intended parents to participate in
the delivery and hospital experience as much like the natural delivery of
their own child as possible.
In spite of these benefits, it is the conclusion of this article that obtaining
a prebirth parentage order is not appropriate in all surrogacy cases or in all
jurisdictions. Instead, whether one can, or should, obtain a prebirth parentage
order depends in part on the law that governs the proceeding and in part
on what type of surrogacy proceeding is arranged. Given the diversity of
precedent, practice, and procedure concerning surrogacy proceedings in
general, it is not possible to present a clear and concise “how to” or “when
to” draft prebirth parentage orders in surrogacy proceedings. Rather, we
present relevant observations compiled from certain representative juris-
4. The intent of the many intended parents using third-party reproduction to disclose to
their resulting children that surrogates and/or egg donors helped to bring about their births
varies. For those parents who are inclined not to disclose such facts to their children, the elim-
ination of an original birth certificate that reveals these facts is desirable. Although children of
third-party reproduction are not now granted any legal right to access their original birth records,
there certainly exists the possibility that, as that population of children grows in number and
matures in political influence over the next several decades, they may gain access to these
records in the same way that adopted children are currently obtaining this access in many states
across the country. See, e.g., W
ASH. REV. CODE ANN. §§ 26.33.330 – 26.33.345 (West 1990).
5. Insurance coverage for the surrogate’s prenatal pregnancy expenses, labor, and delivery,
and the postnatal care of both the surrogate and the child is a complicated issue. Intended parents
frequently expect that the surrogate’s health insurance will cover all of these expenses until they
add the child to their insurance coverage after the birth. Unfortunately, because of the substantial
increase in the number of high-order multiple births (triplets and quadruplets) that result from
the assisted reproduction procedures employed in surrogacies and the resultant increase in the
number of premature births and infant intensive care expenses, many health insurance companies
are currently adding exclusions to their policies for surrogate pregnancies. Often such exclusions
attempt to include adverse complications to the surrogate resulting from the pregnancy and
delivery. Even without an express exclusion, the surrogate’s health insurance policy may not
cover the child’s postnatal care expenses based on the parties’ intent. To obtain coverage, the
intended parents must expressly add the child to their own health insurance policy in a timely
fashion pursuant to their own policy’s terms and conditions, if possible. See Mid-South Ins. Co.
v. Doe, 274 F. Supp. 2d 757 (D. S.C. 2003). Where the intended parents do not have their own
health insurance available for the child or cannot immediately add the child to their coverage
(as in the case of international intended parents without U.S. health insurance coverage), a pre-
birth determination of parentage may actually be detrimental to the child’s coverage under the
surrogate’s policy and may cause unintended adverse insurance consequences.
636 Family Law Quarterly, Volume 39, Number 3, Fall 2005
dictions to highlight the issues and concerns that arise related to such
orders. It is our intention that each practitioner will then, in keeping with his
or her experiential background and governing state law, be able to better
evaluate and advise clients regarding such orders.
Part II of this article discusses the various types of third-party repro-
duction relationships and why prebirth orders of parentage are useful in
surrogacy cases. Part III describes both traditional and gestational surro-
gacy arrangements and concludes that prebirth parentage orders are not
appropriate in cases where any type of adoption proceeding is normally
required to give effect to the parties’ intent. Part IV outlines the various
factors that should be considered whenever seeking a prebirth parentage
order and analyzes these factors in several representative jurisdictions in
the United States.
II. The Benefits of Prebirth Parentage Orders in
Surrogacy Proceedings
Approximately 6.1 million women of reproductive age in the United
States experience some sort of infertility that prevents them from having
children without medical intervention and/or the assistance of third parties
in order to achieve a successful pregnancy.
6
For couples that have a viable
sperm, ovum (egg), and uterus, but simply have trouble conceiving, medical
procedures such as surgery, artificial insemination (AI),
7
and various forms
of in vitro fertilization (IVF)
8
often help them overcome their infertility to
successfully conceive and bear a child.
Persons experiencing infertility who are unsuccessful with the foregoing
medical techniques or for whom those techniques are, for various reasons,
unavailable, have several alternatives available to them. They can elect to
live without children, adopt a child, or pursue third-party reproduction
using a sperm donor, egg donor, and/or surrogate carrier to provide what-
ever component(s) they are lacking in order to successfully reproduce.
Those who opt for third-party reproduction are primarily motivated by
their desire to procreate. Members of this group tend to deem it to be very
important that their offspring be genetically related to at least one of the
intended parents and typically want to recreate the natural process of
reproduction as closely as possible.
For a woman who has a viable uterus, using a sperm donor and/or an
egg donor allows her to create a natural pregnancy and to give birth to the
6. Center for Disease Control, National Center for Health Statistics, available at
http://www.cdc.gov/nchs/fastats/fertile.htm.
7. The introduction of sperm into a female’s uterus by any means other than a penis.
8. The removal of a viable egg from a female’s ovary, its fertilization outside the uterus,
and the transfer of the resulting embryo back into a uterus.
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 637
child. In these cases, the birth mother’s name will normally and automat-
ically go on the child’s original birth record pursuant to hospital and state
birth record procedures. If the birth mother in this situation is married, her
husband’s name will also normally and automatically go on the child’s
original birth record.
9
Thus, when women use only sperm donors and/or
egg donors to have children and give birth themselves, their children’s
birth records are typically in accord with the parties’ intent and do not
have to be amended.
10
As a result, the intended parents often do not par-
ticipate in any legal proceeding, either before or after the birth of the
child, to affirm their parentage or settle potentially competing parental
rights to the child.
11
For a woman who lacks a viable uterus or for a single man or gay
couple, the only avenue available to them to have a child is the use of a
surrogate carrier to gestate and deliver a child. When a surrogate is used,
9. See, e.g., IOWA CODE ANN. § 144.13 (West 1999).
10. In cases of lesbian couples, it is often only the birth mother who is listed on the origi-
nal birth record, and the couple will need an additional proceeding, typically a second-parent
adoption, to have the nonbiological mother’s name placed on the birth certificate.
11. The fact that most intended parents having children through third-party reproduction
where the intended mother actually gives birth to the child do not go through legal proceedings
to formalize their parentage status does not mean that they should not do so. Some such pro-
ceedings are rendered unnecessary by express statutes governing such procedures that serve to
legally establish or sever the parental relationships of the participating parties, such as sperm
donation statutes that are in effect in virtually all states. See, e.g., C
OLO. REV. STAT. ANN. § 19-
4-106 (West 2003). Typically, these statutes state that parents who use sperm donated by a man
other than the husband under certain specified circumstances (e.g., a married couple, under the
supervision of a licensed physician, with the written consent of the husband joined in by the
wife, etc.) are the legal parents of the child upon its birth, whereas the sperm donor is not. These
statutes serve to automatically establish the legal parentage of the intended parents and terminate
any parental rights that the donor (whether known or anonymous) could otherwise claim based
on genetic relationship. These statutes make the determination of parentage in such situations
simple, clear, and inexpensive since no additional legal proceedings are necessary to effect resolu-
tion of the parentage issues. Unfortunately, there are only three states that have similar provisions
for the use of egg donors, and such statutes do not apply to the many people who do not fit within
or comply with the statutory requirements (e.g., unmarried persons, persons who inseminate
without the assistance of a licensed physician, persons who fail to sign or join in the necessary
consents, etc.). F
LA. STAT ANN. §§ 742.11(a), 742.14 (West 1993); OKLA. STAT. ANN. tit. 10, §§
554-555 (West 1990); V
A. CODE ANN. §§ 20-156, 20-158 (Michie 2000). Therefore, in these
cases in which the statutes do not apply, the donors of sperm or eggs may retain the legal right
to assert paternity/maternity rights over the children born using their gametes based on their
genetic relationship to the child pursuant to the provisions of the applicable paternity/maternity
statutes in the relevant jurisdiction. These rights continue unless and until there is a legal pro-
ceeding initiated and completed to formally address establishment and severance of parental
rights among the participating parties. Simply because donors in such cases (particularly anony-
mous donors) may be unlikely to try to establish parental rights to the child does not mean that
they cannot legally do so. Whether legal proceedings to formally determine the rights of the var-
ious parties and prevent such claims are conducted in these circumstances depends on the
informed choice and risk-tolerance of the intended parents, and they should be appropriately
advised regarding these legal issues as part of the third-party-reproduction process.
638 Family Law Quarterly, Volume 39, Number 3, Fall 2005
the same hospital and state birth record procedures operate to put the sur-
rogate’s name on the original birth record as the child’s mother simply
because she gave birth to the child. If the surrogate is married, her hus-
band’s name is also normally put on the original birth record as the child’s
father. The surrogate’s husband’s name can be removed from the birth
certificate if the law of the state in which the child is born allows the
intended father to substitute his name on the original birth record upon the
parents’ execution of an acknowledgment of paternity or some similar
state-authorized form.
12
There is usually no similar administrative form or
procedure available, however, for the intended mother who does not give
birth. As a result, the surrogate carrier must cooperatively participate in
some sort of legal proceeding either before or after the child’s birth to
vary this usual course of events and place both intended parents’ names
on the child’s original or an amended birth record and terminate her pre-
sumptive parental rights to the child. One proceeding to accomplish this
result is to obtain a prebirth parentage order before the child is born.
III. Various Types of Surrogacy Relationships and
Their Effect on Prebirth Parentage Orders
Before surrogacy arrangements became an available means to procre-
ate, legal parentage of a child and the conformity of the child’s birth
records were generally determined and implemented under two separate
statutory schemes, depending on the circumstances of the parties. If the
parties included the birth mother, another genetic parent, and/or an alleged
parent that had certain other preexisting or presumptive family relation-
ships with the child, legal parentage and the related birth records were
determined under the applicable paternity/maternity statutes. If the parties
had no genetic or family relationship to or with the child, legal parentage
and the related birth records could still be established pursuant to the
applicable adoption laws.
13
When it comes to determining parentage in
surrogacy cases, however, the majority of jurisdictions have no statutes or
case law governing surrogacy agreements or the court proceedings to
implement them. In these jurisdictions, attorneys must use these same
paternity/maternity and adoption statutes that are in effect, but were never
originally intended to apply to surrogacy proceedings, to fashion ad hoc
procedures to effect the parties’ intent.
12. MINN. STAT. ANN. § 257.75 subd. 1a (West 2000).
13. Depending on the jurisdiction, the two types of proceedings necessary to effect the par-
ties’ intent may be venued in different divisions of the local court, with some venued in family
court and others venued in juvenile court. If both types of proceedings are required in a partic-
ular surrogacy matter, whether these cases can be consolidated in front of the same judicial offi-
cer will depend on local court rules and procedures.
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 639
Typically, in order for the intentions of the parties to surrogacy agree-
ments to be fulfilled, attorneys must find a way to vary or supersede the
usual laws and regulations establishing parental rights. The normal pre-
sumptions in favor of the child’s birth mother (the surrogate) and her
spouse, if any, must give way to the intent of the parties that the intended
mother and father become the child’s sole legal parents on both the child’s
birth records and in legal effect. Since surrogacy arrangements are varied
in nature, the type of surrogacy arrangement into which the parties have
entered will often determine which statutory rules and procedures apply
in each jurisdiction.
A. Traditional Surrogacy
Prior to medical advances in the use and reliability of IVF, the only
available technology to initiate a surrogate pregnancy was artificial insem-
ination, which was used to implement a “traditional,” or AI, surrogacy in
which the surrogate used her own egg to become pregnant. A traditional
surrogacy can be initiated using either the intended father’s or a donor’s
sperm. In a traditional surrogacy, the surrogate is both the child’s birth
and genetic mother. The intended mother has no genetic, preexisting, or
presumptive family relationship to the resulting child under most paternity/
maternity statutes, so her legal relationship to the child must be established
through some sort of adoption proceeding after the birth of the child.
14
If the intended father’s sperm is used, both he and the surrogate’s spouse
have equivalent presumptions as the child’s father. The intended father’s
paternity presumption is based on his genetic relationship to the child, and
the surrogate’s spouse’s paternity presumption is based on his having
been married to the surrogate during the gestation and birth of the child.
15
Under these circumstances, the intended father usually can use his genetic
relationship to the child to establish his sole paternity of the child and
place his name on the child’s birth certificate pursuant to the state’s relevant
paternity/maternity statutes and procedures.
16
Once this is accomplished,
the intended mother’s legal relationship with the child can then typically
be established through a relatively simple and efficient stepparent adop-
tion proceeding. If a donor’s sperm is used, both the intended mother’s
and intended father’s legal relationship can technically only be estab-
lished through a full adoption proceeding with all of its attendant home
studies, procedural complexities, and delay.
14. There are no existing adoption statutes that contemplate the adoption of anything but a
live child after birth.
15. This is the typical example of a paternity presumption from among a variety of other
possible presumptions as set forth in various paternity/maternity statutes across the country.
16. See, e.g., M
INN. STAT. ANN. § 257.55 (West 2001).
640 Family Law Quarterly, Volume 39, Number 3, Fall 2005
B. Gestational Surrogacy
The surrogate’s genetic relationship to the child in traditional surrogacies
virtually always allows her to retain her legal parental rights to the child
if she elects to do so.
17
As a result, this type of surrogacy arrangement has
become disfavored as other medical options have become available.
18
With the advent of reliable and successful IVF procedures, prospective
intended parents can now implement a “gestational,” or IVF, surrogacy in
which the surrogate’s egg is not used so that she is not genetically related
to the child. Such pregnancies can result using the intended mother’s egg
or, when the intended mother cannot provide either a viable egg or uterus,
a donor’s egg. A gestational surrogacy can also be initiated using either
the intended father’s or a donor’s sperm. These various surrogacy arrange-
ments can change the standing of the parties in surrogacy proceedings, as
well as the outcome of the proceedings.
1. USING AN
EGG D
ONOR
When an egg donor is used, the surrogate is the child’s birth mother,
but neither she nor the intended mother is the child’s genetic mother. The
genetic mother is the egg donor, who is typically acting anonymously. As
a result, the surrogate has a presumptive legal relationship with the resulting
child as the birth mother while the intended mother has no genetic, pre-
existing, or presumptive family relationship to the child. Thus, once again,
the intended mother needs to complete some sort of adoption proceeding
to establish her legal relationship with the child after the birth.
19
In this situation also, the surrogate’s spouse, if any, has a paternity pre-
sumption because he was married to the surrogate during the gestation and
birth.
20
If the intended father’s sperm is used, he shares paternity pre-
17. See, e.g., In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893 (Ct. App. 1994); In re Baby
M, 537 A.2d 1227 (N.J. 1988).
18. Many infertility physicians and clinics now refuse to facilitate or perform AI surroga-
cies even in states where there is no statutory prohibition of or negative case law regarding AI
surrogacy primarily because of the legal risks involved in such arrangements for the intended
parents as established in other jurisdictions. Unfortunately, because IVF medical procedures
and the attendant cost of ovum donors create substantially greater surrogacy program expenses
than AI procedures, this creates a de facto economic bar to many intended parents who would
otherwise use surrogacy to build their families but cannot afford the greater expense of the
ovum donor and IVF procedures.
19. Anonymous egg donors are not typically joined in the paternity/maternity or adoption
proceedings used to create the parental relationships that the known parties to the surrogacy
agreement intend. It is axiomatic that a court proceeding cannot affect the legal rights of third
parties who are not joined in the proceeding. In light of this legal principle, it is certainly possible
that an anonymous donor’s third-party rights to assert maternity based on genetic relationship
continue unabated under the applicable paternity/maternity statutes unless there is an applica-
ble egg donation statute that automatically acts to extinguish those rights or the donor is appro-
priately joined in a court proceeding.
20. M
INN. STAT. ANN. § 257.55 (West 2001).
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 641
sumptions with the surrogate’s spouse based on his genetic relationship to
the child.
21
Under these circumstances, the intended father’s legal rights
to the child can once again be established through a paternity proceeding,
after which the intended mother can undertake a stepparent adoption pro-
ceeding. If a sperm donor is used, both the intended parents must participate
in a full adoption proceeding.
22
2. USING THE INTENDED
MOTHER’S EGG
Fertilization of the intended mother’s egg with the intended father’s
sperm and transfer of the resulting embryo(s) into the surrogate’s uterus
for gestation is now the most preferred method of gestational surrogacy
when the intended mother and father can provide both viable eggs and
sperm. In this case, the surrogate and her spouse, if any, have existing pre-
sumptions for establishment of legal parentage under many paternity/
maternity statutes as the birth mother and the birth mother’s spouse at the
time of gestation and delivery; however, both the intended mother and
father have equal presumptions for establishment of legal parentage under
most states’ paternity/maternity statutes based on their genetic relationship
to the child. As a result, the parties can often use a single paternity/mater-
nity proceeding to obtain a court order establishing the intended parents’
legal parentage and nullifying the competing parentage presumptions of
the surrogate and her spouse, if any.
23
Where the parties are all in agreement in requesting the establishment
of the intended parents’ rights and the intended parents are both geneti-
cally related to the child, such postbirth orders are a matter of course in
many jurisdictions. Even if the parties to such a surrogacy arrangement are
in disagreement, the courts virtually always sustain the genetic parents’
rights to the child over the surrogate’s and her spouse’s rights.
24
Depending
on the court’s analysis, this may be because of the greater weight of genetic
21. Id.
22. The paternity/maternity and adoption proceedings can be successfully completed in
most jurisdictions even where an egg donor is used as long as all the parties are in agreement. The
significant difference between this process and traditional surrogacy is the outcome of disputed
gestational surrogacies. If a gestational surrogate disputes the establishment of the intended par-
ents’ legal parentage when she is not genetically related to the child, the courts will usually give
effect to the intent of the parties and establish parentage in favor of the intended parents regardless
of whether the intended father’s or a donor’s sperm is used. This makes a gestational surrogacy
far preferable to a traditional surrogacy for reliably implementing the legal intent of the parties.
23. Availability of this type of proceeding hinges on whether the jurisdiction’s statutes
authorize a declaration of maternity on the same bases that support a declaration of paternity.
Compare Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) with Andres A. v. Judith N., 591
N.Y.S.2d 946 (Fam. Ct. 1992).
24. See, e.g., Smith v. Brown, 718 N.E.2d 844 (Mass. 1999); Belsito v. Clark, 644 N.E.2d
760 (Ohio Ct. C.P. 1994); Johnson v. Calvert, 851 P.2d 776 (Cal.1993).
642 Family Law Quarterly, Volume 39, Number 3, Fall 2005
relationship or the use of the parties’ intent as a tiebreaker between other-
wise equal paternity/maternity presumptions.
25
Whether a prebirth parentage order is available and appropriate in any
particular surrogacy case depends on several factors. Primary among them,
however, is the fact that adoption proceedings are historically intended and
reserved only for postbirth establishment of parental relationships between
children who have already been born and adults who are otherwise legally
and genetically unrelated to them.
26
Thus, seeking a prebirth parentage order
in either a traditional surrogacy or a gestational surrogacy using a donor
where one or both intended parents are genetically unrelated to the child
and a postbirth adoption proceeding of some sort is required seems proce-
durally inappropriate. On the other hand, seeking such an order in a ges-
tational surrogacy using the intended parents’ egg and sperm so that both
intended parents are genetically related to the child and can establish their
legal rights to the child in a single paternity/maternity proceeding seems
procedurally appropriate. Therefore, the remainder of this article is pred-
icated on the presumption that prebirth parentage orders are only appropriate
in cases where both intended parents can assert a valid presumption of both
paternity and maternity under the applicable paternity/maternity statutes,
usually based on genetic relationship, or where there is specific statutory
authorization in the specific jurisdiction for prebirth orders under other
circumstances.
IV. Factors to Consider Before Seeking a
Prebirth Parentage Order
Even when a gestational surrogacy in which both intended parents are
genetically related to the child is arranged, there are still other factors that
must be considered before seeking a prebirth parentage order. First, jurisdic-
tions differ in their approaches to prebirth parentage orders in paternity/
maternity proceedings. In some jurisdictions without specific statutes or case
law regarding surrogacy, prebirth parentage orders in paternity/maternity
proceedings are specifically permitted by statute. In other such jurisdictions,
prebirth orders are expressly prohibited by statute. Moreover, some jurisdic-
tions statutorily permit a determination of maternity on the same grounds
and procedures as a determination of paternity, whereas others do not.
Accordingly, the availability, validity, and long-term effect of such orders
will differ in these respective jurisdictions.
25. See id.
26. Thus, the term “embryo adoption” is a misnomer, at best, since no adoption law provides
for the adoption of a prebirth embryo or fetus. Embryos, like sperm and eggs, are more accu-
rately construed as being donated, and the legal rules and procedures governing such transfers
of embryos from one intended parent to another should be parallel to other gamete donation pro-
cedures and should make such transfers simple, efficient, and inexpensive for the parties.
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 643
Second, there are jurisdictions with specific enabling or prohibitory
statutes governing certain types of surrogacy that have clear substantive
and procedural requirements or restrictions as to if, when, and how the
parties can obtain a parentage order that reflects their common intent.
Depending on the statutory parameters in each of these jurisdictions, pre-
birth parentage orders may or may not be available or appropriate.
Finally, the parties’ success or failure in obtaining a prebirth parentage
order may simply depend on whether they are cooperatively stipulating to
such relief or are contesting the issuance of such an order. As many prac-
titioners in this area have realized, it is amazing what can be accomplished
when everybody in the courtroom agrees on the outcome.
27
Keeping these factors in mind, following is an analysis of how several
representative jurisdictions in the United States are likely to handle pre-
birth parentage orders in gestational surrogacy cases.
A. California
California is illustrative of jurisdictions that have no statutory provisions
governing surrogacy but expressly allow prebirth parentage determina-
tions.
28
California adopted the general provisions of the 1973 Uniform
Parentage Act (UPA) in 1975.
29
California’s parentage act includes two
relevant provisions. As in many other jurisdictions, California’s applicable
law declares that the determination of maternity is governed by the same
statutory rules, presumptions, and procedures that apply to the determina-
tion of paternity.
30
Furthermore, prebirth parentage determinations and
orders are specifically authorized by California Family Code § 7633,
27. Contrary to common assumption, surrogacy is a reliable family-building option that
rarely leads to legal disputes between surrogates and intended parents over parentage. It is anec-
dotally reported that, of the estimated 14,000 to 16,000 surrogacies completed through 2002,
only 88 have resulted in disputes over parentage. Deborah Morgenstern Katz, Womb for Rent,
P
ARENTING MAG., Dec./Jan. 2002, at 86. Remarkably, of those 88 cases, only 23 were reported
to be surrogates who wanted to keep the child (often simply to leverage better contract terms),
while the remaining 65 were intended parents who were unable or did not want to complete the
agreement (because of divorce, death of one of the intended parents, nature or condition of the
child, etc.). Id.
28. Twelve of the twenty-four jurisdictions that do not have any statutes or case law vali-
dating or invalidating surrogacy appear to permit uncontested prebirth parentage proceedings
and orders, either expressly or implicitly: A
LASKA STAT. §§ 25.20.050 (Michie 2002), .055
(Michie 1997); C
OLO. REV. STAT. ANN. § 19-4-107 (1994); CONN. GEN. STAT. ANN. § 46b-161
(West 1967); K
AN. STAT. ANN. § 38-1115 (2000); ME. REV. STAT. ANN. tit. 19-A, § 1557 (West
1999); M
D. CODE ANN., FAM. LAW § 5-1025 (1984); MISS. CODE ANN. § 93-9-19 (1962); N.C.
G
EN. STAT. § 49-5 (1981); OKLA. STAT. tit. 10, § 70 (2002); 23 PA. CONS. STAT. ANN. § 4343
(West 1997); R.I. G
EN. LAWS § 15-8-10 (1979); and S.D. CODIFIED LAWS § 25-8-12 (Michie
1984).
29. C
AL. FAM. CODE §§ 7600 – 7730 (West 1975).
30. Id. § 7650.
644 Family Law Quarterly, Volume 39, Number 3, Fall 2005
which states that “[a]n action under this chapter may be brought before the
birth of the child.”
31
California has applied these provisions to numerous contested surrogacy
cases. In Johnson v. Calvert, a surrogate became pregnant using an embryo
created with the intended parents’ egg and sperm, so both intended parents
were genetically related to the child.
32
During the pregnancy, the relationship
of the parties deteriorated, and the surrogate threatened to keep the child.
33
The intended parents initiated a prebirth parentage proceeding asking the
trial court to declare them to be the child’s legal parents prior to its birth.
34
In
ultimately deciding the case, the California Supreme Court first determined
that the relevant provisions of California’s parentage act did govern the deter-
mination of maternity in a surrogacy proceeding even though a surrogacy
arrangement was never contemplated in 1975 when California first adopted
the 1973 UPA.
35
The court then ruled that the surrogate and intended
mother each had successfully established a valid presumption of maternity
under the act—the surrogate as the child’s birth mother and the intended
mother as the child’s genetic mother.
36
Finding that neither presumption
outweighed the other, the court ruled that the original intent of the parties
was the factor that resolved the legal impasse between the competing pre-
sumptions in the intended mother’s favor.
37
California also has case law precedent confirming the view that a prebirth
paternity/maternity order in favor of an intended mother is inappropriate
where she is neither the genetic nor the birth mother of the child.
38
In
Moschetta, the California Court of Appeals was faced with litigation
among the divorcing intended parents and the surrogate as to who was the
child’s legal mother.
39
The court again applied the provisions of the
California parentage statutes. The court first determined that there were
no competing parentage presumptions between the surrogate and the
intended mother since the intended mother was neither the birth nor genetic
mother of the child. As a result, there was no dispute as to maternity for
31. Id. § 7633.
32. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).
33. Id. at 778.
34. Id.
35. Id. at 779.
36. Id.
37. Id. at 782 (“We conclude that although the Act recognizes both genetic consanguinity
and giving birth as means of establishing a mother and child relationship, when the two means do
not coincide in one woman, she who intended to procreate the child—that is, she who intended
to bring about the birth of a child that she intended to raise as her own—is the natural mother
under California law.”).
38. In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893 (Ct. App. 1994).
39. Id. at 895.
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 645
the court to decide in the case.
40
The court also alluded to the fact that the
intended mother would have to adopt the child in order to become its legal
parent, and that the surrogacy agreement cannot serve as an adoption
agreement since it did not comply with the statutory consent requirements
for adoption.
41
Thus, prebirth parentage determinations are clearly permitted under
California’s statutory scheme, but only for two genetically related intended
parents who have valid presumptions of both paternity and maternity
under the applicable parentage statutes. Such parents who seek a prebirth
determination of parentage in their favor in California with the acquies-
cence and cooperation of the surrogate would certainly succeed in light of
the success of the intended parents in Johnson v. Calvert, which was a
contested case. This would also presumably be the case in other jurisdictions
in which there are no statutory provisions governing surrogacy and pre-
birth orders are permitted under the governing paternity/maternity statutes.
B. Delaware
In contrast to states like California that expressly permit prebirth parent-
age determinations, twelve states have no statutes or case law validating
or invalidating surrogacy agreements that expressly prohibit prebirth
parentage proceedings and determinations.
42
A representative prohibitory
statute in such states is as follows:
If an action under this section is brought before the birth of the child, all pro-
ceedings shall be stayed until after the birth, except service of process and the
taking of depositions to perpetuate testimony.
43
The intent of this statutory language is to prevent the entry of any final
orders in parentage proceedings until after the birth of the child by statu-
torily depriving the court of the power to enter any such orders before that
time. Intended parents and their counsel who ignore this prohibition may
obtain void orders that any of the parties could subsequently collaterally
attack and vacate. The potential detrimental effect of obtaining such a
40. Id. at 896.
41. Id. at 900.
42. D
EL. CODE ANN. tit. 13, § 8-611 (2005); GA. CODE ANN. § 19-7-43(c) (2002); HAW.
R
EV. STAT. § 584-6(d) (1991); IDAHO CODE § 7-1107 (Michie 1986); MINN. STAT. ANN.§
257.57 subd. 5 (West 1995); M
O. ANN. STAT. § 210.826(4) (West 1998); MONT. CODE ANN. §
40-6-107(4) (1995); N.M. S
TAT. ANN. § 40-11-7(B) (Michie 1986); S.C. CODE ANN. § 20-7-
952(D) (Law. Co-op. 1984); T
ENN. CODE ANN. § 36-2-305(3) (2001); VT. STAT. ANN. tit. 15, §
302(b) (1997); W
YO. STAT. ANN. § 14-2-811 (Michie 2003).
43. H
AW. REV. STAT. § 584-6(d); MINN. STAT. ANN. § 257.57 subd. 5; MO. ANN. STAT. §
210.826(4); M
ONT. CODE ANN. § 40-6-107(4); N.M. STAT. ANN. § 40-11-7(B) (emphasis
added).
646 Family Law Quarterly, Volume 39, Number 3, Fall 2005
void parentage order is amply illustrated by the decision in the California
case of Kristine Renee H. v. Lisa Ann R.
44
The court in Kristine Renee H. decided the parentage of a child born to
a same-sex lesbian couple. The couple in this case mistakenly interpreted
Johnson v. Calvert and its progeny to stand for the proposition that parent-
age in assisted reproduction cases could be established based merely on the
intent of the parties even if that intent was not supported by any substantive
provision of the applicable parentage statutes.
45
The genetic mother con-
ceived and gave birth to a child through artificial insemination. One month
before the child was born, the couple obtained a prebirth parentage order
based on their cooperative stipulation that designated them to be the child’s
“joint intended legal parents.”
46
Nothing in the California parentage statutes
established any basis or presumption on which the court could substantively
establish the unrelated lesbian partner as the child’s parent. Nevertheless,
because of the cooperative nature of the proceeding, a parentage judgment
was issued to this effect.
Two years after the child’s birth, the couple separated, and the child’s
legal mother sought to vacate the judgment alleging that the family court
lacked the statutory authority to issue the order.
47
The appellate court rat-
ified this argument:
As we will explain, we first conclude that the judgment is void. The family
court could not accept the parties’ stipulation as a basis for entering the judgment
of parentage. A determination of parentage cannot rest simply on the parties’
agreement. Rather, because the partner did not adopt the child, the sole basis
upon which the family court could determine parentage is under the Act.
Therefore, the judgment based on the parties’ stipulation was in excess of the
family court’s jurisdiction and of no legal effect.
48
Lack of jurisdiction in the “most fundamental or strict sense means an entire
absence of power to hear or determine the case, an absence of authority over
the subject matter or the parties.” In a broader sense, lack of subject matter
jurisdiction also exists when a court “makes orders which are not authorized by
statute.” “[I]t seems well settled . . . that when a statute authorizes prescribed
procedure, and the court acts contrary to the authority thus conferred, it has
exceeded its jurisdiction . . . .” As we discuss below, we hold that the judgment
is void and of no legal effect as it was not authorized under the Act.
49
44. 16 Cal. Rptr. 3d 123 (Ct. App. 2004), review granted and opinion superseded by 18 Cal.
Rptr. 3d 668 (2004).
45. Id. at 128.
46. Id.
47. Id. at 129.
48. Id. at 126.
49. Id. at 131 (citations omitted). After this article went to press, the California Supreme Court
reversed the Court of Appeals and ruled that Kristine Renee H. was estopped from challenging the
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 647
Applying this same reasoning to prebirth parentage orders, any such
judgment entered in a jurisdiction in which such orders are statutorily pro-
hibited until after the birth of the child by applicable stay provisions under
the relevant paternity/maternity statutes would be void and of no legal
effect. This may be acceptable to the intended parents if the order initial-
ly accomplishes their administrative goals surrounding the birth of their
child, but it would likely not be acceptable if any litigation subsequently
developed among the parties over parentage.
Nevertheless, clients continue to ask for, attorneys continue to seek,
and judges continue to grant such prebirth parentage orders in these juris-
dictions in spite of the express statutory stay provisions and the potential
for subsequent successful collateral attack on orders that are obtained in
contravention of them. The potential administrative benefits of prebirth
parentage orders are too tempting to resist, and the parties deem the risk
of subsequent litigation too remote to deter them from obtaining such
orders. For such avant-garde risk-takers, there is hope in the form of
precedent from Massachusetts.
C. Massachusetts
Massachusetts was originally one of the states that had no statutory or
case law validating or invalidating surrogacy agreements and an express
statutory prohibition against final parentage judgments until after the birth
of the child.
50
As such, the risk existed that any prebirth parentage orders
issued in Massachusetts would be void. Parents and attorneys on their
behalf, however, continued to seek such orders in spite of the risks, and
the issue eventually came directly before the Supreme Judicial Court of
Massachusetts in Culliton v. Beth Israel Deaconess Medical Center.
51
In
that case, the intended parents who were both genetically related to twins
being gestated by a surrogate sought a prebirth parentage order.
52
The
lower court dismissed the action due to a “lack of clarity and certainty” as
to its authority to grant relief.
53
The Massachusetts Supreme Court trans-
prebirth order because she invoked the jurisdiction of the court and stipulated to the judgment.
Kristine H. v. Lisa R., 117 P.3d 690 (Cal. 2005). The court explicitly stated, however, that it
was not determining whether the prebirth order itself was valid. Therefore, it is still question-
able whether, in jurisdictions that explicitly stay proceedings prior to the birth of the child,
courts will hold prebirth orders to be invalid due to lack of jurisdiction or apply the California
court’s estoppel analysis.
50. M
ASS. GEN. LAWS ch. 209C § 14 (1998) (“In the case of any complaint brought prior to
the birth of the child, no final judgment on the issue of paternity shall be made until after the
birth of the child; provided, however, that the court may order temporary support or health care
coverage.”).
51. 756 N.E.2d 1133 (Mass. 2001).
52. Id. at 1135.
53. Id.
648 Family Law Quarterly, Volume 39, Number 3, Fall 2005
ferred the case to itself on its own motion to determine the lower court’s
authority.
54
If the Supreme Court ruled that the Massachusetts’ paternity/
maternity statutes applied, the requested prebirth order would be in con-
travention of the express stay provision preventing such orders.
55
Moreover,
if the court ruled that the Massachusetts’ adoption statutes applied, a pre-
birth order would be in contravention of the four-day waiting period
required before a birth mother can give up her parental rights to her child.
56
In permitting the requested prebirth order for the unanimously consenting
parties, however, the court in Culliton applied reasoning that avoided both
of these statutes that otherwise would have governed the case.
First, the court determined that even though the surrogate was not
married, the Massachusetts’ paternity/maternity laws did not apply to the
case.
57
The court stated that:
[w]hile the twins technically were born out of wedlock, because the gestational
carrier was not married when she gave birth to them, it is undisputed that the
twins were conceived by a married couple. In these circumstances the children
should be presumed to be the children of marriage.
58
Because the surrogate was unmarried, the court used a presumption of
legitimacy in favor of the married intended parents that took the case out
of the paternity/maternity statutes. This avoided the problem posed by the
stay provisions of those statutes. After noting that a married surrogate would
present yet another problem because of the presumption of paternity that
her husband would have, the court went on to state that
[i]t is apparent, after examining the paternity statute in detail, that the statute is
simply an inadequate and inappropriate device to resolve parentage determina-
tions of children born from this type of gestational surrogacy.
59
Thus, it appears that the court ruled that the paternity/maternity statutes
would be inapplicable whether the surrogate is single or married even
though it was only presented with the former factual situation.
60
Second, the court determined that the Massachusetts’ adoption laws did
not apply to the case.
61
After observing that application of the adoption
54. Id.
55. See M
ASS. GEN. LAWS ch. 209C § 14.
56. Id. ch. 210 § 2 (1998).
57. Culliton, 756 N.E.2d at 1137.
58. Id.
59. Id.
60. This view is supported by the Supreme Judicial Court of Massachusetts’ subsequent
decision in Hodas v. Moran, 814 N.E.2d 320 (Mass. 2004), in which the court approved an
uncontested prebirth parentage order in favor of two genetically related intended parents without
further analysis of the legitimacy or illegitimacy of a child born to a married gestational carrier.
Whether the court revisits the validity of its reasoning in this regard remains to be seen.
61. Culliton, 756 N.E.2d at 1137-38.
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 649
statutes to this case with the attendant waiting period would result in a
potentially detrimental delay in the establishment of legal parentage of the
twin children, the court simply stated, “[a]s is evident from its provisions,
the adoption statute was not intended to resolve parentage issues arising
from gestational surrogacy agreements.”
62
With the way thus cleared of the substantive and procedural impediments
of the otherwise applicable paternity/maternity and adoption statutes, the
court in Culliton authorized the issuance of prebirth orders under the limited
circumstances of such gestational surrogacies.
63
Once again, however, this
precedent does not authorize the issuance of prebirth orders where either
of the intended parents is not genetically related to the child. Even in
Massachusetts, such cases still appear to be governed by the applicable
adoption statutes.
In spite of the potential usefulness of the holding in Culliton in posturing
legal arguments in other states about the availability and/or appropriateness
of prebirth parentage orders in light of express stay provisions in the relevant
paternity/maternity statutes, the effectiveness of such orders still depends
on the adoption of the same legal reasoning by the appellate courts of these
other states. Any optimism in this regard that the precedent in Massachusetts
may engender is certainly tempered by the contrary reasoning of the appel-
late courts in New Jersey.
D. New Jersey
New Jersey is also a jurisdiction that has no statutes validating or invali-
dating surrogacy agreements, and its paternity/maternity statutes also contain
language staying all proceedings in paternity/maternity determinations
until after the birth of the child.
64
However, the New Jersey case of In re
Baby M
65
established restrictive public policy regarding the enforcement
of compensated traditional surrogacy agreements in New Jersey. This
restrictive public policy has negatively affected the view and reasoning of
New Jersey’s appellate courts regarding prebirth parentage orders.
In re Baby M confronted the Supreme Court of New Jersey with the
first contested case involving a compensated traditional surrogate who did
not want to surrender her parental rights to the resulting child.
66
As the
62. Id. at 1138.
63. Id.
64. N.J. S
TAT. ANN. § 9:17-45(e) (West 1998).
65. In re Baby M, 537 A.2d 1227 (N.J. 1988).
66. Id. In re Baby M was widely publicized because of the novelty of the issues it raised early
in the evolution of surrogacy arrangements. It contributed heavily to the public misperception
that most surrogates are at high risk of changing their minds and wanting to keep the child. It is
noteworthy that the surrogate in that case was psychologically examined and tested and found
650 Family Law Quarterly, Volume 39, Number 3, Fall 2005
California appellate court did in Moschetta, the New Jersey Supreme
Court determined that the New Jersey paternity/maternity statutes governed
the determination of the child’s mother and that, where the surrogate was
both the genetic and birth mother of the child, she was the child’s sole legal
mother. As a result, the surrogacy agreement among the parties binding
the surrogate to relinquish her parental rights and consent to the intended
mother’s adoption of the child was deemed unenforceable as contrary to
public policy.
67
In so holding, the court observed that it was “no offense
to our present laws where a woman voluntarily and without payment agrees
to act as a ‘surrogate mother,’ provided that she is not subject to a binding
agreement to surrender her child.”
68
In re Baby M has resulted in the application of New Jersey’s adoption
laws to all surrogacy arrangements, including gestational surrogacies. In
A.H.W. v. G.H.B., the New Jersey appellate court was presented with a
request for a prebirth parentage order in a gestational surrogacy arrangement
in which both intended parents were genetically related to the child.
69
All
of the parties, including both genetically related intended parents and the
genetic mother’s sister who acted as the surrogate in an uncompensated
surrogacy arrangement, consented to the issuance of a prebirth order.
70
In
spite of circumstances that could clearly distinguish the case from the tradi-
tional surrogacy in In re Baby M, the court ruled that no prebirth parentage
order could issue because the adoption statutes still applied and precluded
a birth mother from voluntarily surrendering her child for adoption within
seventy-two hours of the child’s birth.
71
The court also noted that New
Jersey’s birth records regulations required that the birth mother’s name be
placed on the original birth certificate.
72
A.H.W. provides a stark contrast to the reasoning of Culliton and a very
different result. Without knowing which line of reasoning a particular
court will adopt in a jurisdiction that has express stay provisions barring
the entry of prebirth parentage orders, the use and reliance upon any such
orders remains risky, at best. If intended parents insist on obtaining such
orders where they are available only in contravention of the applicable
to be at high risk of having difficulty separating from the child. The intended parents insisted
on using the surrogate in spite of this clear warning signal, and, unsurprisingly, the dispute
occurred. As a result of the lessons learned through the circumstances and result of In re Baby
M, surrogacy procedures have been significantly improved to make the process much more reli-
able today.
67. Id. at 1240.
68. Id. at 1235.
69. A.H.W. v. G.H.B., 772 A.2d 948 (N.J. Super. Ct. Ch. Div. 2000).
70. Id. at 949.
71. N.J. S
TAT. ANN. § 9:3-41(e) (West 1993).
72. N.J. A
DMIN. CODE tit. 8, § 2-1.5(a) (2005).
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 651
stay provisions, they should only do so with full disclosure and awareness
of the potential ramifications of their decision.
E. New Hampshire, Virginia, Texas, and Utah
A number of states have enacted statutes authorizing and regulating
surrogacy agreements. Four of them, New Hampshire, Virginia, Texas, and
Utah, have adopted varying statutory schemes that require the parties to
submit qualifying surrogacy agreements to the court for judicial preau-
thorization before the pregnancy is initiated.
73
New Hampshire passed comprehensive legislation authorizing and regu-
lating surrogacy agreements in 1990.
74
The statute provides procedures for
judicial preauthorization of surrogacy agreements
75
and states that any agree-
ment that is not judicially preauthorized is not “lawful.”
76
Nevertheless,
the statute allows a surrogate to keep the child if she executes and delivers
a signed statement of her intent to do so to the intended parents within
seventy-two hours of the birth of the child.
77
The statute also expressly
prohibits the issuance of the child’s birth certificate within the same sev-
enty-two-hour period.
78
Although New Hampshire’s paternity/maternity
statutes allow for prebirth consent proceedings to determine parentage,
79
the clear policy of the statute preventing the issuance of birth records in a
73. Many commentators on the law of surrogacy extol the virtues of judicial preauthoriza-
tion of surrogacy agreements as an enlightened method of making such agreements reliable and
predictable for the parties. Notwithstanding the fact that New Hampshire’s law specifically
allows a surrogate to change her mind and keep the child after the birth of the child, making it
far from reliable or predictable, judicial preauthorization is not necessarily the panacea that
some assert it is. N.H. R
EV. STAT. ANN. § 168-B:25(IV) (1990). After many years of interacting
with infertile persons participating in all kinds of fertility procedures, including, but not limited
to, third-party reproduction, we are aware that such persons are universally short of two things—
time and money. These persons have often gone through years of fertility procedures before
resorting to third-party reproduction and are rapidly aging past their preferred parenting windows
of opportunity; furthermore, the fertility procedures they have already attempted were expensive,
uninsured, and unsuccessful, leaving them with limited assets for the rest of their fertility journey.
In these cases, the potential for unregulated delay and the additional legal expense in connection
with the court proceedings required for judicial preauthorization of their agreements is clearly
undesirable. Based on conversations with practitioners in such jurisdictions, many intended par-
ents and practitioners circumvent the judicial preauthorization procedures for just these reasons
whenever possible.
74. Id. §§ 168-B:1 to 168-B:32 (1990).
75. Id. § 168-B:21 (stating that the parties must petition the court for judicial approval of
the surrogacy agreement after the agreement is signed but before the medical procedure(s) to
initiate the pregnancy are performed).
76. Id. § 168-B:16(I).
77. Id. § 168-B:25(IV).
78. Id. § 168-B:26.
79. N.H. R
EV. STAT. ANN. § 168A:5 (1990) (stating that a proceeding can commence during
the pregnancy of the mother if the father consents).
652 Family Law Quarterly, Volume 39, Number 3, Fall 2005
surrogacy arrangement until seventy-two hours after the birth makes the
issuance of any prebirth parentage orders highly unlikely.
The National Conference of Commissioners on Uniform State Laws
approved the Uniform Status of Children of Assisted Conception Act in
1988 (USCACA),
80
and Virginia adopted the USCACA’s surrogacy pro-
visions in 1991.
81
The purpose of the USCACA was to create a system for
determining parentage of children conceived through assisted reproduc-
tion.
82
The USCACA had two alternative provisions applicable to surrogacy
agreements: one that permits and regulates surrogacy agreements entered
into by heterosexual married couples (Alternative A)
83
and one that makes
all such agreements void and unenforceable (Alternative B).
84
Virginia
adopted Alternative A.
85
No other states have adopted Alternative A to the
USCACA.
Virginia’s statutory scheme under the USCACA also provides for judicial
preauthorization of surrogacy agreements.
86
While the statute does not give
the surrogate the express right to rescind the agreement and keep the child
after the birth, it allows for a postbirth court order placing the intended
parents’ names on the birth certificate only on the express condition that
one of the intended parents is genetically related to the child.
87
There is a
separate postbirth administrative procedure to amend the birth records for
surrogacy agreements that the court has not preauthorized,
88
so agreements
that are not preauthorized are not necessarily void or unenforceable.
Although there is no clear prohibition against prebirth parentage orders in
Virginia’s paternity/maternity statutes, all parentage determinations in
surrogacy arrangements have specific postbirth alternatives, so prebirth
parentage orders are apparently unavailable in Virginia.
The National Conference of Commissioners on Uniform State Laws
promulgated a new Uniform Parentage Act (UPA) in 2000.
89
The purpose
of the 2000 UPA was, in part, to create an updated uniform system of
determining parentage in keeping with recent medical and technological
advances in genetic testing and assisted reproduction.
90
It also eliminated
80. UNIF. STATUS OF CHILDREN OF ASSISTED REPROD. ACT, 9C U.L.A. 363 (1988).
81. V
A. CODE ANN. §§ 20-156 to 20-165 (Michie 1991).
82. U
NIF. STATUS OF CHILDREN OF ASSISTED REPROD. ACT prefatory note, 9C U.L.A. 365
(1988).
83. Id. §§ 5-9 at 373-82.
84. Id. § 5 at 383.
85. V
A. CODE ANN. §§ 20-159 to 20-163 (1991).
86. Id. § 20-160.
87. Id. § 20-160(D).
88. Id. § 20-162.
89. U
NIF. PARENTAGE ACT, 9B U.L.A. 295 (2000) (amended 2002).
90. See id. §§ 501-511 at 329-37 (entitled genetic testing); §§ 701-707 at 354-59 (entitled
child of assisted reproduction); §§ 801-809 at 360-70 (entitled gestational agreement).
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 653
the state-by-state option to regulate or void surrogacy agreements and
contained a new section permitting judicial preauthorization of surrogacy
agreements for all intended parents, whether married or unmarried, thus
superceding the USCACA.
91
Texas adopted the 2000 UPA in 2001
92
and
added the surrogacy provisions by amendment in 2003.
93
Utah adopted
the 2000 UPA, including the surrogacy provisions in 2005.
94
No other
states have yet to adopt the surrogacy provisions of the UPA.
Judicial preauthorization of surrogacy agreements is required under both
the Texas and Utah versions of the UPA.
95
If the court has not preautho-
rized an agreement, both statutes render the agreement unenforceable, with
parentage of the resulting child to be determined under the other applicable
provisions of the UPA relating to establishment of paternity/maternity.
96
If the court has preauthorized the agreement, the court will issue an order
placing the intended parents’ names on the child’s birth certificate after
the birth of the child and once the intended parents have filed a notice with
the court within 300 days of the date of the assisted reproductive procedure
stating that the child was born and is theirs.
97
This limits the parties to
obtaining postbirth parentage orders in qualifying surrogacy arrangements.
98
The other provisions of each state’s relevant paternity/maternity statutes
govern and determine parentage under both unauthorized and nonqualifying
agreements.
99
Neither Texas’ nor Utah’s paternity/maternity statutes appear
to allow prebirth parentage orders,
100
so the preceding analysis that was
set forth for states with no governing statute and stay provisions on such
orders will dictate the availability and success of attempted consent pro-
ceedings to determine parentage pursuant to nonqualifying agreements.
Under all four states’ surrogacy statutes, intended parents who preautho-
rize their surrogacy agreements may place their names on the child’s birth
certificate only through procedures that occur after the birth of the child.
101
91. Id. § 801 at 362.
92. T
EX. FAM. CODE ANN. ch. 160 (Vernon 2001).
93. Id. §§ 160.751 – 160.763 (Vernon 2003).
94. U
TAH CODE ANN. ch. 45g (2005).
95. T
EX. FAM. CODE ANN. § 160.756; UTAH CODE ANN. § 78-45g-801(4).
96. T
EX. FAM. CODE ANN. § 160.762; UTAH CODE ANN. § 78-45g-809(2).
97. T
EX. FAM. CODE ANN. § 160.760; UTAH CODE ANN. § 78-45g-807.
98. Both the Texas and Utah statutes limit judicial preauthorization of surrogacy agree-
ments to those arrangements in which the intended parents are a married couple and the surro-
gate does not use her egg, among other qualifying factors. T
EX. FAM. CODE ANN. § 160.754;
U
TAH CODE ANN. §§ 78-45g-801(3), 803(j).
99. See generally T
EX. FAM. CODE ANN. ch. 160 (Vernon 2001); UTAH CODE ANN. ch. 45g
(2005).
100. T
EX. FAM. CODE ANN. § 160.611 (stating that a proceeding to determine parentage can-
not be concluded until after the birth of the child); U
TAH CODE ANN. § 78-45g-611 (same).
101. N.H. R
EV. STAT. ANN. § 168-B:26 (1995); TEX. FAM. CODE ANN. § 160.760 (Vernon
2003); U
TAH CODE ANN. § 78-45g-807 (2005); VA. CODE ANN. § 20-160(D) (2000).
654 Family Law Quarterly, Volume 39, Number 3, Fall 2005
New Hampshire and Virginia appear to limit all surrogacy agreements to
postbirth procedures, whereas Texas and Utah allow certain agreements to
be governed by other provisions of their respective paternity/maternity
statutes. Nevertheless, any prebirth parentage orders obtained in Texas or
Utah, even with the consent of all parties, would suffer from the jurisdic-
tional infirmities common to all such orders in states with express stay
provisions on such orders. As a result, a prebirth parentage determination
does not seem to be prudent or advisable in any of these states.
F. Illinois
Illinois passed its unique and revolutionary Gestational Surrogacy Act
(Act) that authorizes compensated gestational surrogacy contracts in
2004.
102
Unlike any other comprehensive surrogacy statutes in effect in
other jurisdictions, the Illinois statute requires no judicial review, approval,
or implementation of a surrogacy agreement.
103
As long as the intended
parents and the surrogate satisfy the eligibility requirements of the Act
104
and enter into a contract that meets the Act’s requirements,
105
the intended
parents are the legal parents of the child “immediately upon the birth of
the child.”
106
Furthermore,
a parent-child relationship shall be established prior to the birth of a child born
through gestational surrogacy if, in addition to satisfying the requirements of
Sections 5 and 6 of the Illinois Parentage Act of 1984, the attorneys represent-
ing both the gestational surrogate and the intended parent or parents certify that
the parties entered into a gestational surrogacy contract intended to satisfy the
requirements of Section 25 of this Act with respect to the child.
107
Thus, gestational surrogacies that meet all of the Act’s requirements
easily obtain a prebirth determination of the parentage of the child in the
intended parents’ favor with no right of the gestational surrogate to
change her mind after the pregnancy is initiated. Amazingly, this prebirth
determination is obtained without the delay or expense of any court pro-
ceedings of any kind.
In addition to the absence of any court proceedings for qualifying sur-
rogacies, the Act expressly implements an “intent of the parties” test for
determining the parentage of any child born without full compliance with
all of the Acts requirements.
108
Unlike the UPA as adopted in Texas and
102. 750 ILL. COMP. STAT. §§ 47/1 – 47/75 (2004).
103. Id. § 47/25.
104. See id. § 47/20.
105. See id. § 47/25.
106. Id. § 47/15(b)(1).
107. Id. § 47/35 (emphasis added).
108. Id. § 47/25(e).
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 655
Utah, which determines the parentage of a child born pursuant to a non-
complying surrogacy agreement to the general provisions of the respec-
tive state’s paternity/maternity law, Illinois imports the intent concept first
elucidated in Johnson v. Calvert
109
and makes it the deciding factor for
establishing legal parentage in surrogacy arrangements of any type.
Although that Act facilitates the issuance of birth records in keeping
with the parties’ intent only for gestational surrogacy arrangements that
comply with the various restrictions on who can enter into a qualifying
surrogacy contract,
110
it deftly removes the potential delay and additional
legal expense engendered by the judicial preauthorization statutes in effect
in other jurisdictions to the significant benefit of the intended parents.
The Act also truly makes all surrogacy arrangements, even nonqualifying
arrangements that the Act does not procedurally govern, more reliable and
predictable by expressly determining parentage in those cases in keeping
with the proven intent of the parties. This ensures that each party will receive
exactly what he or she expected prior to the initiation of the pregnancy
after full disclosure and consultation regarding the proposed procedure
and contract.
Although the Act ensures that the intent of the parties in surrogacy pro-
ceedings in Illinois will be effected, the availability of prebirth parentage
orders in cases that do not comply with the requirements of the Act
remains suspect. Illinois is a jurisdiction in which all paternity/maternity
determinations are expressly stayed by statute until after the birth of the
child.
111
As a result, any such prebirth orders would be subject to possible
jurisdictional attack as discussed previously.
G. Florida
Florida also has an authorizing statute for certain types of surrogacy
agreements.
112
Florida’s statute authorizes uncompensated gestational
surrogacies for married couples with intended mothers who cannot safely
physically gestate a pregnancy.
113
The statute, however, allows only for a
postbirth determination of parentage and the subsequent amendment of
the child’s birth records.
114
The postbirth amendment of the birth records
requires a court hearing pursuant to a petition filed by the intended par-
ents within three days of the child’s birth and two separate court orders,
109. 851 P.2d 776 (Cal. 1993).
110. 750 I
LL. COMP. STAT. § 47/20 (2005).
111. Id. § 45/7(e) (1984).
112. F
LA. STAT. ANN. §§ 742.15–742.16 (West 1993).
113. Id. § 742.15.
114. Id. § 742.16.
one determining parentage and another directing the Department of Health
to issue an amended birth record.
115
Florida’s paternity/maternity statutes do authorize paternity/maternity
proceedings during the pregnancy and before the birth of the child.
116
It
may be possible to seek a prebirth parentage order under those statutes.
However, given the statutory mandate that a binding and enforceable sur-
rogacy agreement must be signed before any gestational surrogacy is
started, it seems unlikely that a court would vary the postbirth parentage
proceedings that apply to all other gestational surrogacy arrangements to
allow a prebirth order simply because both the intended mother and father
are the genetic parents of the child.
H. Arizona, the District of Columbia, Indiana,
Michigan, and New York
Arizona, the District of Columbia, Indiana, Michigan, and New York each
have statutes prohibiting any type of surrogacy arrangement, including
gestational surrogacy. Arizona’s statute states that any children born to
surrogates pursuant to a surrogate parentage contract are the legal children
of the surrogate and her husband.
117
The law applicable in the District of
Columbia states that surrogate parenting contracts are prohibited and
unenforceable.
118
It goes on to state that any person who “is involved in,
or induces, arranges, or otherwise assists in the formation of a surrogate
parenting contract,” with or without a fee, can be fined up to $10,000
and/or imprisoned for up to one year.
119
Indiana law states that the enforce-
ment of surrogacy agreements of any kind is against public policy
120
and
all such agreements are void.
121
Michigan’s statute echoes that all surrogate
parentage contracts are against public policy and void,
122
and it provides
penalties for the parties to compensated surrogacy arrangements and the
third parties who may arrange them of $10,000 and/or one year imprison-
ment and $50,000 and/or five years imprisonment, respectively.
123
Finally,
New York law also declares surrogate parenting contracts to be against
public policy and void
124
and imposes a $500 fine on a party to such an
115. Id.
116. Id. § 742.011.
117. A
RIZ. REV. STAT. § 25-218 (1989) (held unconstitutional in Soos v. Superior Ct., 897
P.2d 1356 (Ariz. Ct. App. 1994)).
118. D.C. C
ODE ANN. § 16-402(a) (1981).
119. Id. § 16-402(b).
120. I
ND. CODE § 31-20-1-1 (1997).
121. Id. § 31-20-1-2.
122. M
ICH. COMP. LAWS ANN. § 722.855 (West 1988).
123. Id. § 722.859.
124. N.Y. D
OM. REL. LAW § 122 (McKinney 1992).
656 Family Law Quarterly, Volume 39, Number 3, Fall 2005
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 657
agreement for compensation.
125
The first-time fine for a third party who
arranges a compensated surrogacy is $10,000, but a third party is guilty of
a felony if he or she violates the statute a second time.
126
Although these jurisdictions are unfavorable to surrogacy arrangements
in general, each of them has a statute that allows prebirth parentage determi-
nations in paternity/maternity proceedings with the consent of all concerned
parties.
127
Nevertheless, in light of these jurisdictions’ blanket adverse
policy declarations and severe civil and criminal penalties, one would
think that it would be impossible to obtain any ratifying parentage order
in a surrogacy proceeding in any of these hostile jurisdictions. However,
this may not be the case.
A case decided in New York in a surrogacy proceeding is illustrative of
the unpredictable ebb and flow of the determination of parentage in such
arrangements in the eyes of various courts in the same jurisdiction.
128
The
case involved a gestational surrogacy in which both the intended father and
the intended mother were genetically related to the resulting child.
129
The
case was brought first before the family court for an uncontested determi-
nation and order that the genetically related intended parents were also the
children’s legal parents.
130
After the family court refused to enter the
requested order, the intended parents appealed the ruling to the New York
Supreme Court.
131
Surprisingly (or, perhaps, unsurprisingly), the parties
achieved opposite results in the two proceedings, illustrating some of the
issues discussed earlier in this article.
The family court in Andres A. v. Judith N. was asked to enter an order
declaring the genetically related intended mother in a surrogacy arrange-
ment to be her child’s legal mother.
132
Unfortunately, the court was faced
with Article 5 of the New York Family Court Act which, as the court
specifically noted, “makes no provision for declarations of maternity.”
133
In accord with our preceding discussion of the jurisdictional issues that
arise when a court exceeds its statutory authority and the likely nullity of
any resulting orders that are entered, the court refused to enter an order
determining the maternity of the intended mother, stating:
Although the court is not unsympathetic to the plight of the petitioner, Luz A.,
the court cannot legislate judicially what is not contained within the statute.
125. Id. § 123(2)(a).
126. Id. § 123(2)(b).
127. See A
RIZ. REV. STAT. § 25-804; D.C. CODE ANN. § 16-2342; IND. CODE § 31-14-4-1;
M
ICH. COMP. LAWS ANN. § 722.715; N.Y. DOM. REL. LAW § 517 (McKinney 1985).
128. See generally Andres A. v. Judith N., 591 N.Y.S.2d 946 (N.Y. Fam. Ct. 1992).
129. Id.
130. Id.
131. Id.
132. Andres A. v. Judith N., 591 N.Y.S.2d 946.
133. Id. at 949.
658 Family Law Quarterly, Volume 39, Number 3, Fall 2005
Accordingly, for the aforementioned reasons petitioner, Luz A.’s petitions for
a declaration of maternity . . . are dismissed for lack of subject matter jurisdic-
tion. The court notes that petitioner Luz A. is not without a remedy since she
may seek to adopt the two children.
134
Two years later, New York Supreme Court was faced with the same
case on appeal in Arredondo v. Nodelman.
135
The petitioning intended
parents were still seeking an order declaring that the genetically related
intended mother was the children’s legal mother. With no analysis of its
jurisdictional authority or limitations, the court simply held:
The City does not oppose the petition insofar as it seeks to change the name of
the mother listed on the children’s birth records to Luz Arredondo. No papers have
been received from any other party. This Court concludes that Luz Arredondo
is the mother of the petitioner children. From the affidavits submitted there is
no dispute that the children borne by respondent Nodelman resulted from the
eggs of Luz Arredondo which were fertilized by the sperm of her husband Andres
Arredondo, and not from the eggs of Nodelman or the sperm of her husband.
Indeed, the results of the genetic testing reveal that Nodelman could not be the
mother of the children, and that it is highly probable that the Arredondos are
the genetic parents of the children. Accordingly, the petition is granted. This
Court declares that Luz Arredondo is the mother of the petitioner children and
the respondent City is directed to issue new birth records for the children
reflecting that fact.
136
Arredondo clearly illustrates the unpredictability of the analysis of any
particular surrogacy case in any particular court, including different courts
in the same jurisdiction with the same governing statutes and legal prece-
dent. The family court carefully analyzed the statutory authority granting
and governing its power to issue the requested relief and determined,
rightly so, in all probability, that it lacked the jurisdiction to issue the order.
Simply put, the family court focused on the law.
When the Superior Court analyzed the same case, it focused not on the
law, but on the equity. It focused on the fact that the parties were all in
agreement and no one, not even the City, was contesting the issuance of the
requested order. Facing the practicality, not the legality, of those circum-
stances, the court did what was situationally efficient, but not necessarily
legally appropriate.
Although there is no published case law exhibiting the issuance of any
prebirth parentage orders in any of these prohibitory jurisdictions, given
the permissiveness of the paternity/maternity statutes regarding prebirth
parentage determinations in each of the jurisdictions and the frequent will-
134. Id. at 950.
135. Arredondo v. Nodelman, 622 N.Y.S.2d 181 (Sup. Ct. 1994).
136. Id. at 182.
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 659
ingness of courts in uncontested parentage proceedings resulting from
surrogacy arrangements to give the parties what they ask for as long as
everyone is in agreement, it would not be the least bit surprising if there
were attorneys in each of these jurisdictions who were successfully
obtaining such prebirth orders from sympathetic judges in uncontested
proceedings. Nevertheless, the law in these jurisdictions clearly seems
unsupportive of such orders, but not as unsupportive as the law in those
jurisdictions where there are express statutory stay provisions prohibiting
the prebirth entry of such orders.
V. Conclusion
Intended parents in surrogacy proceedings will always yearn for cer-
tainty regarding the outcome of the agreements into which they enter with
their selected surrogates. They will also continue their efforts to make the
experience at the hospital upon the birth of their child as reassuring and
comfortable as possible with a minimum of potential conflict and adminis-
trative red tape. Prebirth parentage orders, which give the intended parents
the certainty and control they are seeking, will increasingly sing their
sirens’ song, compelling many intended parents to seek such orders whether
they are legitimately available in the relevant jurisdiction or not.
Fortunately, the highly prized prebirth parentage order is reasonably
achievable in many surrogacies in many different jurisdictions: (1) if both
intended parents are the progenitors of the child, supplying both the egg
and sperm that created the embryo that was implanted into the surrogate’s
womb for gestation, so that a paternity/maternity proceeding is the legally
appropriate mechanism to determine and establish parentage rather than
an adoption proceeding; (2) if the jurisdiction’s paternity statutes also
allow its family courts to consider and determine maternity; (3) if there is
no stay provision prohibiting the issuance of prebirth orders in appropri-
ate paternity/maternity proceedings; (4) if there is no express statutory
procedure prohibiting the prebirth procedure or mandating an alternate
postbirth order in surrogacy matters; and (5) if the proceeding is uncon-
tested and all parties are unanimously requesting the same relief, a pre-
birth order is available, appropriate, and effective.
As the factors set forth in the preceding paragraph ebb away in various
cases and/or jurisdictions, the availability and reliability of prebirth
parentage orders becomes more and more suspect. After all, if no one ever
complains about or disputes an invalid order after it is entered, it still
seems pretty effective for its intended administrative purposes. However,
in that one rare case in which a dispute between the parties to a surrogacy
arrangement does unexpectedly arise after the parentage order is entered,
660 Family Law Quarterly, Volume 39, Number 3, Fall 2005
it would be nice to have an order that the court actually had jurisdiction to
enter and that is not subject to collateral attack.
The trump card in these proceedings will continue to be the unanimous
and cooperative agreement of all parties. Some judges will continue to be
lulled into a sense of security by the solidarity of the parties appearing
before them in these cases. Intended parents will continue to militate for
prebirth orders for their certainty and convenience. Attorneys will continue
to seek appropriate ways to obtain the relief for which their clients are
asking in surrogacy matters that were often never contemplated when the
applicable statutes were enacted. Although it is always appropriate to
advocate and build on existing precedent to create new legal solutions for
cases that have not previously existed, as we venture out into this rela-
tively uncharted legal landscape, attorneys must continue to evaluate and
understand the potential ramifications of experimental legal designs and
thoroughly disclose them to and discuss them with their clients.
The Use of Prebirth Parentage Orders in Surrogacy Proceedings 661
STATE Law Affecting Surrogacy Prebirth Order Proceedings
Alabama §§ 26-10A-33, 26-10A-34 Stayed – § 26-17-6(d)
Alaska Not Stayed – §§ 25.20.050, 25.20.055
Arizona § 25-218 Not Stayed – § 25-804
Arkansas § 9-10-201 Not Stayed – § 9-10-103
California Family Code § 7648.9 Not Stayed – Family Code § 7633
Johnson v. Calvert, 851 P.2d 776 (1993); In re Marriage
of Moschetta, 30 Cal. Rptr. 2d 893 (Ct. App. 1994);
In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Ct.
App. 1998); Kristine H. v. Lisa R., 117 P.3d 690 (2005)
Colorado Not Stayed – § 19-4-107
Connecticut Doe v. Doe, 710 A.2d 1297 (Conn. 1998) Not Stayed – § 46b-161
Delaware Tit. 13, § 8-103 Stayed – tit.13, § 8-611
District of Columbia § 16-402(a) Not Stayed – § 16-2342
Florida §§ 742.11 – 742.16 Not Stayed – § 742.011
Georgia Stayed – § 19-7-43(c)
Hawaii Stayed – § 584-6(d)
Idaho Stayed – § 7-1107
Illinois Ch 750, §§ 47/1 – 47/75 Stayed – ch. 750, § 45/7(e)
Indiana § 31-20-1-1 Not Stayed – § 31-14-4-1
Iowa § 710.11 Not Stayed – § 600B.9
Kansas Not Stayed – § 38-1115
Kentucky § 199.590 (repealed) Not Stayed – § 406.071
Louisiana § 9:2713 Not Stayed – By implication
Maine Not Stayed – tit. 19-A, § 1557
Maryland § 5-327 Not Stayed – § 5-1025
Massachusetts R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998); Smith v. Brown, Stayed – ch. 209C, § 14
718 N.E.2d 844 (Mass. 1999); Culliton v. Beth Israel
Deaconess Medical Center, 756 N.E.2d 1133 (Mass. 2001);
Hodas v. Moran, 814 N.E.2d 320 (Mass. 2004)
Michigan § 722.855 Not Stayed – § 722.715
Minnesota Stayed – § 257.57 subd. 5
Mississippi Not Stayed – § 93-9-19
Missouri Stayed – § 210.826(4)
Montana Stayed – § 40-6-107(4)
Nebraska § 25-21,200 Not Stayed – § 43-1411
Nevada §§ 126.045, 126.053 Stayed – § 126.071
New Hampshire §§ 168-B:1 to 168-B:32 Not Stayed – § 168-A:5
New Jersey In re Baby M, 537 A.2d 1227 (N.J. 1988); A.H.W. v. G.H.B., Stayed – § 9:17-45(e)
772 A.2d 948 (N.J. Super. Ct. Ch. Div. 2000)
New Mexico Stayed – § 40-11-7(B)
New York Family Code § 122 Not Stayed – Family Code § 517
Andres A. v. Judith N., 591 N.Y.S.2d 946 (N.Y. Fam. Ct.
1992); Arredondo v. Nodelman, 622 N.Y.S.2d 181 (N.Y.
Sup. Ct. 1994)
North Carolina Not Stayed – § 49-5
North Dakota §§ 14-18-01, 14-18-05 Stayed – § 14-17-05 (repealed)
* Amendment Pending
Ohio Seymour v. Stotski, 611 N.E.2d 454 (Ohio Ct. App. 1992); Not Stayed – § 3111.04
Belsito v. Clark, 644 N.E.2d 760 (Ohio Ct. C.P. 1994)
Oklahoma Not Stayed – tit. 10, § 70
Oregon § 163.537 Not Stayed – § 109.125
Pennsylvania Not Stayed – ch. 23, § 4343
Rhode Island Not Stayed – § 15-8-10
South Carolina Stayed – § 20-7-952(D)
South Dakota Not Stayed – § 25-8-12
Tennessee § 36-1-102 (48)(A) Stayed – § 36-2-305(3)
Appendix
662 Family Law Quarterly, Volume 39, Number 3, Fall 2005
STATE Law Affecting Surrogacy Prebirth Order Proceedings
Texas §§ 160.751 – 160.763 Stayed – § 160.611
Utah §§ 78-45g-801 to 45g-809 Stayed – § 78-45g-611
Vermont Stayed – tit. 15, § 302(b)
Virginia §§ 20-156 to 20-165 Stayed – By implication
Washington §§ 26.26.210 – 26.26.260 Stayed – § 26.26.550
West Virginia § 48-22-803(e)(3) Stayed – § 48-24-101
Wisconsin § 69.14(1)(h) Stayed – § 767.45
Wyoming Stayed – § 14-2-811
