The rights of individuals and spouses in the United States concerning surrogacy

Abstract

This academic article aims to examine the meaning and typologies of surrogacy, the development of surrogacy practices in the United States, the scope of the right to procreate, the legal boundaries concerning the rights of gestational mothers, and the fundamental rights to marriage and surrogacy for LGBTQ+ individuals. Employing a doctrinal research methodology, the study yields several key findings. First, surrogacy refers to a process in which a woman carries a pregnancy on behalf of an individual or a married couple who wish to have a child. Surrogacy is traditionally divided into two principal types: traditional surrogacy and gestational surrogacy. Second, the landmark decision in In re Baby M prompted numerous states to enact legislation either regulating or prohibiting surrogacy agreements. Subsequently, the decision in Johnson v. Calvert (1993) established California as one of the states that formally recognized the legal validity of gestational surrogacy contracts. Third, in J.R. v. Utah, the court affirmed that the right of genetic parents who utilize a surrogate to carry the pregnancy to conceive and raise their child constitutes a fundamental right. Accordingly, the state may not impose restrictions on such parental rights without a compelling justification. Moreover, the court held that genetic parents need not resort to adoption procedures to obtain legal parentage. Fourth, the Uniform Parentage Act (UPA) codifies the legal rights of intended parents in surrogacy arrangements and ensures equal legal parentage protections for LGBTQ+ families. Fifth, the U.S. Supreme Court’s rulings in United States v. Windsor, Obergefell v. Hodges, and Pavan v. Smith, 582 U.S. confirm that same-sex couples possess the constitutional right to marry and to be listed as legal parents on the birth certificates of children born through assisted reproductive technologies. These decisions collectively require states to accord same-sex couples the same legal treatment afforded to different-sex couples in matters concerning marriage, family formation, and parental recognition.