Comment

The longstanding shortage of adoptable children in this country has led many would-be parents to enlist a gestational mother (previously referred to as a "surrogate mother") to bear a child for them. As contrasted with the assisted reproduction regulated by Article 7, which involves the would-be parent or parents and most commonly one and sometimes two anonymous donors, the gestational agreement (previously known as a surrogacy agreement) provided in this article is designed to involve at least three parties; the intended mother and father and the woman who agrees to bear a child for them through the use of assisted reproduction (the gestational mother). Additional people may be involved. For example, if the proposed gestational mother is married, her husband, if any, must be included in the agreement to dispense with his presumptive paternity of a child born to his wife. Further, an egg donor or a sperm donor, or both, may be involved, although neither will be joined as a party to the agreement. Thus, by definition, a child born pursuant to a gestational agreement will need to have maternity as well as paternity clarified.

The subject of gestational agreements was last addressed by the National Conference of Commissioners on Uniform State Laws in 1988 with the adoption of the Uniform Status of Children of Assisted Conception Act (USCACA). Because some Commissioners believed that such agreements should be prohibited, while others believed that such agreements should be allowed, but regulated, USCACA offered two alternatives on the subject; either to regulate such activities through a judicial review process or to void such contracts. As might have been predicted, the only two states to enact USCACA selected opposite options; Virginia chose to regulate such agreements, while North Dakota opted to void them.

In the years since the promulgation of USCACA (and virtual de facto rejection of that Act), approximately one-half of the states developed statutory or case law on the issue. Of those, about one-half recognized such agreements, and the other half rejected them. A survey in December, 2000, revealed a wide variety of approaches: eleven states allow gestational agreements by statute or case law; six states void such agreements by statute; eight states do not ban agreements per se, but statutorily ban compensation to the gestational mother, which as a practical matter limits the likelihood of agreement to close relatives; and two states judicially refuse to recognize such agreements. In states rejecting gestational agreements, the legal status of children born pursuant to such an agreement is