For months on end, we saw the headlines:
“Kim Kardashian Surrogate Makes Appearance”
“Kardashian Surrogate Revealed”
“Why Kim Used Surrogate for Baby No. 3”
The problem? Media outlets needs to be very careful when using the term “surrogate.”
I know what you’re thinking: does it really matter which word we use? In a legal context, it does.
Gestational Carrier
Also called: full surrogacy
Kim Kardashian’s highly publicized third pregnancy involved a gestational carrier- not a traditional surrogate. This means that pregnancy did not involve the third party’s genetic material (1). An embryo- the already fertilized egg- was implanted into the third party, containing only Kim and Kanye’s genetic material.
Traditional Surrogacy
Also called: partial surrogacy
A lot of states currently ban traditional surrogacy because of the legal complications that may follow. This involves the surrogate’s genetic material in the conception of the fetus (1). What gets tricky is the custody rules following the birth of the child. There are various circumstances in which a surrogate might fight to keep the child she is carrying i.e. emotional attachment to the baby, belief the other party is unfit to raise the child, not enough financial compensation, etc. Because the fetus is biologically part hers, a massive legal battle may ensue.
The Legal Perspective
The complicated nature of surrogacy stems from custody claims along with the best interests of the child. In re Baby M was a custody battle in 1988 in which Mary Beth Whitehead acted as a traditional surrogate for William and Elizabeth Stern- meaning the egg belonged to her while the sperm belonged to William. Whitehead decided she wanted to keep the baby after she gave birth, but was only granted custody rights after the case was settled (2). The legitimacy of surrogacy came into question- along with the safety and rights of the surrogate.
Surrogacy Law in the U.S.
Resources:
- https://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/files/columbia_sexuality_and_gender_law_clinic_-_surrogacy_law_and_policy_report_-_june_2016.pdf
- https://law.justia.com/cases/new-jersey/supreme-court/1988/109-n-j-396-1.html