Iowa Supreme Court Cites NeJaime’s Work in Surrogacy Decision

On February 16, 2018, the Iowa Supreme Court ruled that gestational surrogacy agreements are enforceable in the State, citing the work of Professor Douglas NeJaime in its decision.

The case involved a couple in Iowa who had used a surrogate to have a child through a surrogacy agreement. After the child was born, the surrogate wanted to keep the child, and a court battle ensued. The ruling, which reaffirmed a lower court ruling, was the first time Iowa determined surrogacy contracts can be enforced.

In the decision, the Court found that gestational surrogacy agreements are not against public policy and are therefore enforceable in Iowa. Furthermore, the decision rejected the constitutional claims of the gestational surrogate, finding that the surrogate cannot assert parental rights to the child or claims on behalf of the child. The decision does not consider the parental claim of the non-biological intended mother (the biological father’s wife), but leaves the child free to be adopted by that intended mother.

The decision specifically cites Professor NeJaime’s article “The Nature of Parenthood,” which was published in the Yale Law Journal in 2017.

NeJaime, who teaches and writes in the areas of family law, law and sexuality, constitutional law, law and social movements, and legal ethics, was also recently cited in a report produced by a New York State Task Force on Life and the Law. The Task Force has recommended that New York State overturn a longtime ban on surrogacy.