The Effect of Surrogacy Births on Inheritance

By Andrew W. Vorzimer, Esq.; Lori A. Shafton, Esq.& Milena D. O'Hara, Esq.

Third and fourth-party reproductive arrangements raise important issues regarding rights of inheritance for children born with the assistance of surrogate mothers and/or genetic donors. Current scientific advances have created innumerable opportunities for couples to create their families through egg donors, sperm donors and surrogate mothers, with some children born without a genetic connection to the Intended Parents whatsoever.

Is it possible that these children could inherit from two or three sets of “parents”? A review of current surrogacy law and inheritance rights in the United States confirms that children may inherit only from their Intended Parents through the establishment of one legally recognized parent-child relationship.

In a recent 1998 precedent-setting surrogacy case in California, Buzzanca v. Buzzanca, a couple contracted with an egg and sperm donor to create embryos which were then implanted to the uterus of a surrogate mother. After a dispute ensued between the couple after the birth of a baby girl, Jaycee, the court concluded that the Intended Father was deemed the legal father despite the lack of a genetic connection to his daughter.

The decision was instrumental in supporting the legal rights of parents entering into surrogacy arrangements, and by logical inference, the inheritance rights of children born to them. The court in Buzzanca concluded that the parent-child relationship was legally established between the Intended Parents and the subsequent child at the time that the Intended Parents initiated and consented to the medical procedures used to conceive their child. See, Buzzanca v. Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. App. 1998). Thus, in California, donors and surrogates are legally excluded from the rights and duties conferred by the establishment of a parent-child relationship between the Intended Parents and resulting children at the point of conception. As a result, children would inherit from the Intended Parents only as their legal issue or heir.

In other jurisdictions throughout the United States, children born through surrogacy arrangements will generally inherit only from their Intended Parents. Contractually, the legal relationship between parent and child is typically established prior to conception through an agreement between the parties that only the Intended Parents will be deemed the legal parents of a child born from the agreement. The parties agree from the outset that a donor, surrogate and/or their families will not attempt to form a parent-child or any other relationship with a subsequent child. In addition to the placement of the Intended Parents’ names on the birth certificate of the child, parenthood may be further memorialized through the filing of stipulated Judgments of Maternity and Paternity.

The inheritance rights of children born through surrogacy arrangements may be analogized to the inheritance rights of children born through adoption. In cases involving adoption, an adopted child is deemed the legal child of the adoptive parents for purposes of rights of inheritance to the exclusion of the natural parents. Thus, adoptive parents are conferred all the legal rights of a natural parent. See, e.g., Hall v. Vallandingham, 75 Md. App. 197, 540 A.2d 1162 (1988). By analogy, the Intended Parents involved in surrogacy arrangements are similarly conferred the fundamental rights as the resulting child’s only legal parents.

The right of a child to assert “dual inheritance” is strictly prohibited throughout the United States. It is impossible for a child born in the United States to “double dip” and assert more rights than those possessed by a natural child in an effort to inherit from more than one set of “parents”. From the outset of cases involving surrogacy, only the Intended Parents are deemed the subsequent child’s legal parents.

In California, the parent-child relationship is essentially established at the point of conception. In other jurisdictions throughout the United States, the legal rights of the Intended Parents are established at the time a Judgment of Maternity and Paternity is entered and the names of the Intended Parents are placed on the child’s birth certificate. The inheritance rights of children born from surrogacy arrangements are therefore intricately tied to the establishment of the Intended Parents legal rights.

©Vorzimer, Masserman & Ecoff, 1998,1999

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Last Updated: February 17, 1999
(c) 1998,1999 - Vorzimer, Masserman & Ecoff, A Professional Corporation