• Rights of a Misidentified Surrogate Child
  • February 13, 2018
  • The increase of non-traditional families over the last few decades has led to a plethora of complex cases involving the rights of biological parents, surrogates, donors, and nonbiological third parties. One recent case involved a surrogate who became pregnant with her own child while carrying the child of Chinese donor parents. It created confusion regarding the applicable legal principles and how the law should decide such a case.

    According to the facts of the case, a mother of two children became a surrogate mother by entering into a legal contract with a private agency. After undergoing in vitro fertilization and becoming pregnant with the donor family’s child, the woman discovered that she became pregnant with her own biological child as well; a rare occurrence called superfetation. The donor family then paid her additional compensation under the mistaken belief that the children she was carrying were twins and that they both were products of in vitro fertilization.

    The children had already been placed in custody of the donor parents when the surrogate mother saw cellphone pictures of the babies and realized that the children were not twins. Subsequent DNA testing revealed that one of the children was the biological child of the surrogate mother and her partner. The misidentified surrogate child was eventually turned over to the biological parents.

    Court Favors Biological Parents
    The Supreme Court favors granting custody to a child’s biological parents and has even stated that the best interests of the child is secondary to the parents’ fundamental constitutional rights regarding their children. Even in cases wherein biological parents have not been model parents or temporarily lost custody of their child to the state, they still have a Fourteenth Amendment right to the care, custody, and management of their child. In Troxel v. Granville, the court emphasized that the Federal Constitution permits a state to interfere with the rights of biological parents only to prevent harm to the child.

    There is a presumption that the biological parents act in their child’s best interests, therefore the court is hesitant to intervene and award custody to someone other than the child’s biological parents. Therefore, once the identities of a child’s biological parents have been determined, the legal analysis focuses solely on the fundamental constitutional rights of those biological parents and the reciprocal rights of their child. In this case, the rights of the child’s biological parents would trump any mistaken expectations of the donor parents. The donor parents would only have legal and contractual rights to both children if both children were conceived because of in vitro fertilization.

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