Baby M/Comments - Legal Significance

Legal Significance

The case attracted much attention as it demonstrated that the possibilities of third party reproduction raise novel legal and social questions about the meaning of parenthood and the possibility of contracting around issues of pregnancy and childbirth.

Among other points of contention, people argued about whether the ability to contract away parental rights to a child born to her invoke a basic human right for a woman to make decisions about her own body, or whether recognizing such a right would entail too great risks of exploitation.

The New Jersey court's finding that no contract can alter the legal position of a woman who bears a child as that child's mother seemed to settle the question of the status of surrogacy contracts in America, at least until technological advances permitting gestational surrogacy resulted in cases where a woman can bear and birth a child to whom she has no genetic relation reopened the question in many jurisdictions.

At least in New Jersey, however, the Baby M. ruling continues as precedent. In 2009, New Jersey Superior Court ruled that In re Baby M applies to gestational surrogacy as well as traditional surrogacy cases, in A.G.R. v. D.R.H & S.H.. The intended parents were a homosexual male couple. They created an embryo using an anonymous donor ovum and the sperm of one of the husbands. The sister of the other husband carried the embryo to term and originally delivered the child to her brother and his husband, but a year later asserted her own parental rights even though she was not genetically related to the child. Judge Francis Schultz relied on In re Baby M to recognize the gestational mother as the child's legal mother. However, a later ruling in 2011 awarded full custody to the biological father.