We wrote about it a month ago (8/12) before the surrogate child was born. This is the case where two California adults contract with an Alaskan surrogate to carry and deliver a child. The child develops a rare and often fatal birth defect prompting the contracting parents to demand termination of the pregnancy. A clause in the agreement allows for that and an abortion is scheduled in Washington state. The woman carrying the child reneges and goes to Texas where she gives birth and obtains orders from a Texas court for the child to have an initial surgery to begin correcting the heart defect. Meanwhile Texas upholds a California order stating that the contracting parties have custody to the exclusion of the surrogate. The surrogate has asked the U.S. Supreme Court suspend those orders because California did not have jurisdiction over the surrogate.
This is a fact driven appeal but note that we live in an age of travel. California “parents”. Alaska surrogate. Contract says Alaska law applies. There was briefly a case filed in Alaska but it appears to have been dismissed because the child was due to be aborted. Surrogate reverses course and selects a state known as a haven for quality medical care or a haven for pro life laws, depending on whose view you adopt. Surrogate had no Texas connections until she flew there last month.
This case may turn on the fact that the California court acted to assume jurisdiction without ensuring that the surrogate was properly served with judicial proceedings. If true, that certainly is a problem. But does that mean the default jurisdiction is wherever the surrogate chooses to give birth?
The Supreme Court application is appended. The California parents have not yet filed a response to the September 6 pleading. Suffice to say this innocent and afflicted child comes to Earth entangled in a legal morass. Again, we have only the allegations submitted by one party. But what seems clear is that consistent with general child custody principles, parties need to have only one jurisdiction in charge of pre-natal conflicts and that jurisdiction should control.
20260909162543949_2026 09 09 Emergency Application.pdf
Our earlier summary. Interstate Surrogacy Yields a Frightening Set of Problems | Pennsylvania Divorce and Domestic Relations Blog
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