Courts have kept redefining who counts as a mother in surrogacy cases
In 1986 a New Jersey court named the surrogate the legal mother of Baby M yet gave custody to the biological father. Four years later a California court ruled the opposite way on motherhood, deciding it belonged to the woman who intended to raise the child. Laws on surrogacy still vary wildly from country to country.
Surrogacy is an arrangement in which a woman becomes pregnant and gives birth for another person or couple, who become the legal parents. In traditional surrogacy the carrier's own egg is used, so she is genetically related to the baby. Far more common now is gestational surrogacy, first achieved in 1986, in which an embryo made by IVF from the intended parents' or donors' eggs and sperm is transferred to a carrier who shares no genes with the child. People turn to it for many reasons, including infertility, a missing or removed uterus, medical conditions that make pregnancy dangerous, and among single men and same-sex couples.
The idea is old but was never common. Babylonian law allowed a woman who could not give birth to use another woman to avoid a divorce. The modern practice rested on a string of advances: estrogen production in 1936, fertilisation outside the body in 1944, frozen sperm in 1953, the first American surrogacy contract in 1976 and the birth of Louise Brown, the first IVF baby, in England in 1978.
Legal responses have diverged sharply. Paid, or commercial, surrogacy is regulated or banned in many places, and the differences have fuelled travel across borders for fertility treatment. India barred commercial surrogacy for foreigners in 2015 over concerns about reproductive tourism, while Ukraine approved its first surrogacy law in 2009. In 2021 Mexico's Supreme Court held that parentage should rest on the will to have a child rather than genes or gestation. Italy in 2024 outlawed the practice even abroad for its citizens, and Slovakia wrote a ban into its constitution in 2025.
Professional bodies offer guidance on who should serve as a carrier, and an international obstetrics federation urges that her autonomy be respected throughout pregnancy, even against the intended parents' wishes. Surrogates most often cite a wish to help a childless couple, with financial reward less frequently named.
Source: Surrogacy
