Jurisdictional Weight Breakdown
Under McKenna West v. Intended Parents benchmark parameters, traditional surrogacy involves biological maternity (genetics + gestation), creating a fundamental liberty interest under the 14th Amendment Due Process Clause (Troxel v. Granville). Supreme Court certiorari consideration hinges on whether state contract enforcement overrides a biological mother's revocation of consent prior to parental rights termination.
- Baby M (N.J. 1988): Traditional surrogacy contracts paying money are unenforceable/contrary to public policy.
- Johnson v. Calvert (Cal. 1993): Intent test governs gestational surrogacy when egg/gestation split.
- Troxel v. Granville (2000): Fit parents have fundamental Due Process right to child custody.
Traditional vs. Gestational Surrogacy Disputes
In traditional surrogacy, the surrogate contributes her own ovum, establishing a direct 50% genetic connection alongside full gestational labor. In gestational surrogacy, embryos created via IVF with donor or intended parent gametes are transferred, rendering the surrogate genetically unrelated. Supreme Court jurisprudence emphasizes biological ties alongside gestational commitment when evaluating fundamental parental rights.
14th Amendment & Pre-Conception Intent Doctrine
The Substantive Due Process Clause protects fit biological parents from arbitrary state interference. However, state courts differ on whether pre-conception surrogacy agreements constitute a binding waiver of parental rights. Under California's landmark Johnson v. Calvert precedent, legal parentage in gestational disputes turns on original pre-conception intent, whereas traditional surrogacy courts often treat money-for-surrogacy agreements as void under baby-selling statutes (In re Baby M).
Interstate Jurisdiction & Full Faith and Credit
When intended parents reside in a surrogacy-friendly state (e.g., California) and the surrogate resides or gives birth in a non-enforcement forum (e.g., Nebraska), a constitutional crisis arises under Article IV Article 1 (Full Faith and Credit). The Supreme Court must weigh state public policy exceptions against federal full faith mandate for parentage orders across state lines.