Surrogacy Cases

  • J.F. v DB.— A couple contacted a private surrogacy agency after they learned that they could not conceive any additional children. The parties entered into a surrogacy contract which named the gestational carrier. Pursuant to this agreement, three of egg donor’s eggs were fertilized in vitro with the intended father’s sperm and were implanted into the gestational carrier. Within four weeks, the parties learned that the gestational carrier was pregnant with triplets. The gestational carrier decided to take the children home with her from the hospital without the consent of the intended parents. A custody battle ensued and the trial court ordered the intended parents to pay child support to the gestational carrier. The Superior Court held that the gestational carrier had not established that she had not established in loco parentis status because the intended parents had not agreed to allow her to assume custody of the children. The Superior Court held that the gestational carrier had standing to seek child support even if she was caring for the children against the parents’ wishes. The Court further held that the intended parents were fulfilling a financial obligation to the triplets that would have existed even if the gestational mother had never been awarded support.
  • Ferguson v. McKiernan: An agreement was made between a sperm donor and donee (Mother) that the donor’s role in the conception would remain confidential and he would not seek visitation if Mother would not demand financial or emotional support from him. Mother gave birth to twins and filed a child support action against the donor when the twins were five years old. The trial court held that the parties’ oral agreement, even if binding, was not enforceable as a matter of law. The Supreme Court reversed and held that a donor involved in private sperm donation can make an agreement with the donee that he will not liable for child support. The Court relied on the distinction between those involved in a relationship or sexual encounter that produces a child via intercourse and those who conceive via an anonymous sperm donation which results in the birth of a child. In the case of a dissolved relationship/sexual encounter, both parents are obligated to provide support. In the case of an anonymous donation, both parties are not obligated to provide support. The Court reasoned that in the present case, the parties mutually intended to preserve all of the trappings of a conventional sperm donation, including formation of a binding agreement. As such, the Court held the parties’ agreement was enforceable.

NOTE: The cases listed are for informational purposes only and may have been amended or overturned by subsequently decided court cases.