Surrogacy has been a hotly contested legal topic, with opponents arguing it commodifies children and reduces the female body to an incubator, and proponents supporting the stance that surrogacy offers a unique way for individuals who are unable to either carry or conceive children to create a genetic relationship with their child—something adoption does not allow. Additionally, those in favor state that surrogacy actually empowers women to make choices about their own bodies and finances1.
This article does not in any way mean to draw conclusions about motherhood, parental rights, or what a family looks like, but rather to simply discuss a fascinating interplay between medicine, law, and ethics that is deeply intertwined within the home, with very real consequences for many people—starting in 1985 with the groundbreaking case of Baby M.
In 1985, William Stern and his wife, Dr. Elizabeth Stern, entered into a surrogacy contract with Mary Beth Whitehead because of Dr. Stern’s multiple sclerosis. Whitehead served as both egg donor and surrogate; she waived all parental rights and was compensated $10,000. Whitehead gave birth to a healthy baby girl, Melissa (famously known as Baby M). However, a few days after Melissa’s birth, Whitehead began having doubts and wanted to go back on the contract2.
Judge Sorkow presided over the 32-day trial without any real precedent to aid in his decision. He separated the issue into two categories: custody and contract. Sorkow deemed surrogacy contracts enforceable and constitutionally protected. For the issue of custody, he relied on the “best interest” standard and determined the baby should be placed in the custody of the Sterns. Whitehead appealed this decision to the New Jersey Supreme Court. The court decided to uphold the initial decision to keep the baby with the Sterns; however, it ruled to void the surrogacy contract completely and restore parental rights to Whitehead. So while the baby remained in the custody of the Sterns, her legal mother was technically still Whitehead. However, in 2004, Melissa Stern had the parental rights of Whitehead terminated and was formally adopted by Elizabeth Stern1,2,3.
The New Jersey Supreme Court ruling failed to set any real precedent for future cases regarding parental rights. Instead, it continued to perpetuate the ambiguity surrounding the legality of surrogacy contracts, which has largely become a state issue.
In 2014, Sherri Shepherd and her now ex-husband, Lamar Sally, entered into a surrogacy contract. Sally’s sperm was used to fertilize a donor egg, which was then implanted into a gestational surrogacy carrier. Shepherd and Sally’s marriage fell apart throughout this process, and Shepherd refused to be listed as the baby boy’s mother. Of note, the hospital listed the surrogate as the mother, who also did not share a genetic relationship to the baby. (The surrogate mother was then responsible for the entirety of the medical bills, which Sally reportedly covered.) Shepherd tried to void the surrogacy contract. In 2015, a Pennsylvania court declared the contract valid. Despite multiple appeals, the ruling stood, and Shepherd was listed as the boy’s mother on his birth certificate and held financially responsible4.
In Stern v. Whitehead, the surrogacy contract was deemed invalid. In the Shepherd case, the opposite was true, and a surrogacy contract was ruled as a binding legal agreement. These are just two of many, many legal cases regarding surrogacy. There is no clear legal, societal, or medical definition of what makes a parent a parent—and one could argue that while there is no legal precedent, there shouldn’t even be one. In the latter case, there were three arguable “mothers”: the biological, the intended, and the carrier. These are very confusing, complex, individual situations, and it stands to argue that a courtroom is not the best place for these conversations to be taking place.
However, the fundamental issue arises due to a lack of regulatory foresight. Surrogacy is largely possible due to in vitro fertilization (IVF). In 1978, Louise Brown, the famous “test tube baby,” was born via IVF due to the radical work of doctors Steptoe and Edwards5. This was groundbreaking work, but it was also largely untested. There was no discussion or thought about legality and how this would radically change the process of motherhood for the world.
Research needs to progress. IVF is a huge move in increasing accessibility to parenthood for groups like same-sex couples and those who struggle with infertility. But as the years have shown, these major advancements—while good—significantly impact people’s lives and families, and there is no system in place designed to regulate them. We are dealing with issues on a case-by-case basis, with a lot of confusion and inconsistencies.
Arizona is notably one of three states where surrogacy contracts are not enforceable by law6. That means a birth mother must give up parental rights so that the intended parents can adopt the baby7. There are no statutes or laws that uphold a surrogacy contract. This is dangerous for all parties. If the intended parents decide they no longer want the child, the surrogate mother is responsible for the baby and has no legal backing to definitively ensure she is compensated as agreed. If a gestational carrier decides she does not want to give up parental rights anymore, the parents by intent and financial responsibility are no longer definitely going home with the baby they had planned for for nine months. Both cases are devastating.
It’s naive to think this is a question that can be solved in a research laboratory or in a courthouse, but as advancements in reproductive technology continue to progress, they are things we should all be thinking about.
References
- Younger, J. T. (1988). What the Baby M case is really all about. Minnesota Journal of Law & Inequality, 6(2), 75–. https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1347&context=lawineq
- Family Source Consultants. (2021, October 21). The first contested surrogacy case: The story of Baby M. Family Source Consultants. https://www.familysourceconsultants.com/first-contested-surrogacy-case-story-baby-m/Family Source Surrogacy
- Vardags. (2016, March 3). Sherri Shepherd’s failed maternity suit and what it means for surrogacy contracts. Vardags. https://vardags.com/family-law/sherri-shepherd-surrogacy-contracts
- TD Law Group. (n.d.). The Sherri Shepherd surrogacy case explained. TD Law Group. Retrieved April 27, 2025, from https://tdlawgroup.com/sherri-shepherd-surrogacy-case/
- Pacific Fertility Center Los Angeles. (2022, July 25). History of IVF: Origin and developments of the 20th century. https://www.pfcla.com/blog/history-of-ivf
- Creative Family Connections. (n.d.). The US Surrogacy Law Map™. Retrieved April 27, 2025, from https://www.creativefamilyconnections.com/us-surrogacy-law-map/
- WG&F Law. (2024, February 28). Arizona surrogacy laws. https://www.wgandf-law.com/arizona-surrogacy-laws/
Nicole Varda is a medical student at the University of Arizona College of Medicine-Phoenix. She’s particularly interested in bioethics and narrative medicine. She also enjoys reading, exploring new coffee shops and breweries, and spending time with family and friends. Please feel free to reach out at nvarda@arizona.edu.