Marion and Jimmy lived together for three years and planned to continue to do so without ever marrying. They are both professional models who wanted to have children but Marion did not want to go through a pregnancy while she was at the peak of her career. The idea of harvesting her eggs did not appeal to her so they found an egg donor at a local gamete bank. Although they did not know it, her

Question

name is Jane. They used Jimmy's sperm. They decided on and executed a contract with a gestational surrogate and her husband, Joanne and Hal. After going through the pregnancy and delivery, Joanne and Hal decided they wanted to keep the baby. Jane also decided that she didn't like the idea of having a child out there in the world somewhere that she was failing to parent. Marion and Jimmy have broken up due to the stress of the surrogacy experience.

Identify and briefly describe the four tests most commonly used by the courts to resolve disputes arising out of surrogacy arrangements and indicate who the legal parents would be under each test.

Answer 1

The student should identify and describe the four tests and then express an opinion about which parties will prevail under each test. The question sets no rule with respect to how many parents a child can have. The courts customarily apply one of the following four tests to determine parentage, each of which may produce an outcome significantly different from the end results produced by the others:
a) An intent test: Under this test, the individual or individuals who want to become parents and put the birth process in motion will be considered the legal parents of the resulting child. "[B]ut for the acted on intentions of the parties, the child would not exist." The California Supreme Court was the first to adopt the intent test in Johnson v. Calvert, a case that involved a contest between an intended and a gestational mother. The court held that "she who intended to bring about the birth of a child that she intended to raise as her own is the natural mother." (Marion and Jimmy)
b) A genetic test: Courts that apply a genetic test in parentage determinations give priority to genetic heritage based on the premise that genes contribute to the greatest extent in shaping the child's nature and future life. A genetic parent will be deemed a legal parent under this test. In cases in which the surrogate mother is also the genetic mother, courts are especially reluctant to terminate her parental rights. In some states, absent an enforceable agreement to the contrary, the individuals who contribute the genetic material are considered the child's legal parents. (Jimmy and Joanne)
c) A gestational test: This test places greatest emphasis on the significance of the fact that the birth mother is responsible for the health and safety of the fetus for the nine months of pregnancy. Her lifestyle, habits and physical and psychological condition potentially have a permanent effect on the child. This test is consistent with the traditional common law approach to the establishment of maternity. (Joanne and Hal)
d) A best interest of the child test: This is the standard traditionally applied in the family law context with respect to matters pertaining to the custody of children. It serves to insure that in resolving disputes affecting minor children, protection of the child will be the primary considera-tion. The court looks to who is best able to fulfill the social and legal responsibilities of parent-hood, including not only financial support but also physical and psychological nurturing of the child, intellectual and moral guidance, and stability and continuity of care. (A matter of opinion!)