A state Supreme Court took up an unusual case recently of a same-sex couple struggling over a child custody agreement. The element that made the case unusual was the fact that the child was conceived using an egg from one of the mothers while the other mother carried the child to term. As such, the previous courts had understood only one of the parents as a “biological” parent for the purposes of a custody agreement and the other was considered a surrogate. 

This case presents unique challenges for family law, which is still in the process of evolving to keep up with the changing ways that people are creating families. 

In this case, the state supreme court where the case was tried said that the parenting agreement designating the mother who carried the child to term as a “nonbiological parent” was not accurate. Instead the justices said that the mother-child relationship could be legally established by the fact that the mother had given birth. 

The custody agreement will still be enforceable but may need to be modified to adjust to the new understanding of both mothers as biological parents. 

This case implicates some tricky issues, such as the status of a woman who acts as a hired or volunteer surrogate but who does not intend to raise the child as her own. In those cases the biological parents would not want the surrogate to have a legal right to the child, so a distinction should be made between those cases and the status of same-sex couples who have children together. 

Source: Review Journal, “Surrogate mother has parental rights, supreme court rules,” Sean Whaley, Oct. 3, 2013