Legal principles and essential surrogacy cases every practitioner should know

Gestational surrogacy challenges constitutional, contract, family, negligence, and malpractice law. This article explores legislative and judicial efforts to protect participants, address professionals’ duties of care, and create legally secure families.

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Volume 113, Issue 5, Pages 908–915


Susan L. Crockin, J.D., Meagan A. Edmonds, J.D., Amy Altman, J.D.


Gestational surrogacy, made possible with the introduction of in vitro fertilization, has expanded family building options while introducing novel challenges to established legal principles involving constitutional, contract, and family law as well as duty of care and negligence. Both legislatures and courts have grappled with how to apply these sometimes-competing areas of law to protect participants and professionals, and to create legally secure families. This article explores the following: the Constitutionally protected rights of privacy and reproductive autonomy of gestational surrogates; Contract Law principles that govern surrogacy contracts; the varied ways states have extended Family Law to establish legally recognized parent−child relationships between intended parents and children born to gestational surrogates; and the legal duties of care medical professionals owe to their patients.

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Fertility and Sterility

Editorial Office, American Society for Reproductive Medicine

Fertility and Sterility® is an international journal for obstetricians, gynecologists, reproductive endocrinologists, urologists, basic scientists and others who treat and investigate problems of infertility and human reproductive disorders.