WHO IS THE LEGAL PARENT? A CASE REVIEW OF IN RE BABY M AND THE EVOLUTION OF SURROGACY LAW IN THE UNITED STATES

Abstract

Surrogacy has transformed the way many individuals and couples build families, especially those who cannot conceive or carry a pregnancy. Despite its growing acceptance, surrogacy continues to raise difficult legal questions about who should be recognized as a child's legal parent when biological, genetic, gestational, and intended parenthood do not belong to the same person. One of the most influential cases in this area is In re Baby M (1988), which marked the first major judicial examination of commercial surrogacy in the United States. Although decided more than thirty years ago, the case continues to influence legal discussions on parenthood, reproductive autonomy, and the enforceability of surrogacy agreements. This article reviews In re Baby M and examines its lasting impact on the development of surrogacy law in the United States. It analyzes the facts of the case, the reasoning of the New Jersey Supreme Court, and the legal principles established by the judgment. The article further explores how later judicial decisions and legislative reforms have responded to the issues raised in Baby M, especially the recognition of intended parents, the regulation of gestational surrogacy, and the protection of children's welfare. A comparative discussion of selected jurisdictions demonstrates that clearer statutory regulation has reduced many of the legal uncertainties that continue to exist in parts of the United States. The article argues that although In re Baby M remains a landmark decision, developments in assisted reproductive technology require a more modern legal framework capable of balancing reproductive autonomy, contractual certainty, and the best interests of the child. It concludes that greater consistency in surrogacy regulation is necessary to provide legal certainty for surrogate mothers, intended parents, healthcare professionals, and children born through assisted reproduction.