US court to decide legal mother of surrogate baby boy

The Court of Appeals in Indiana, US, is to decide who is the legal mother of an 11-month old baby boy conceived by IVF and born to a surrogate. The boy's genetic parents, known in court records as T.G. and V.G, are a married couple from northern Indiana. The birth mother is the wife's sister, who agreed to carry the baby for the couple. The boy's father's name is listed on his birth certificate but his mother's name will not be added until the court rules which of the two women is the legal parent.

A petition, filed by the couple and supported by the surrogate, asked for V.G to be named as the child's mother. This was denied by a judge at the Porter County Courts who ruled that 'Indiana law does not permit a non-birth mother to establish maternity.' The decision was disputed by attorney Steven Litz, who argued for the genetic mother to be recognised as the legal parent and asked the Court of Appeals to intervene.

The case highlights the complicated legal challenges surrounding surrogacy. Litz described how problems arise because the law has not kept up with reproductive technology. Surrogate parenting didn't exist when Indiana's paternity law, which allows men, but not women, to establish legal parenthood, was passed over 50 years ago. Advances in surrogacy mean that even the state's 1988 surrogacy law has now become obsolete. Contractual agreements are unenforceable and the law doesn't 'address cases in which the surrogate isn't the child's genetic mother'. Litz also said that, although up to 10,000 babies have been born to surrogates in the US, state laws are 'really all over the place', with no clear federal guidelines.

Many of the states' surrogacy laws were passed in the 1980s following the landmark Baby M case in New Jersey. Mary Beth Whitehead agreed to be a surrogate and egg donor for William and Elizabeth Stern but attempted to keep the baby when she was born. However, after a long battle, the courts terminated her parental rights and Elizabeth Stern was allowed to adopt her husband's daughter. The New Jersey Supreme Court then overturned part of this verdict, restoring Whitehead's rights and invalidating Elizabeth Stern's adoption, but granting custody to William Stern.

The Baby M decision was cited in another recent New Jersey case when a woman acted as a surrogate for her brother and his male partner. In 2006, after giving birth to twins conceived with the partner's sperm, she refused to relinquish her parental rights and was declared the legal mother. The court also granted legal rights to her brother's partner but awarded none to her brother.