Finders-Keepers: A Bright-Line Rule Awarding Custody to Gestational Mothers in Cases of Fertility Clinic Error

Authors

Josh Deutsch, Benjamin N. Cardozo School of Law

Abstract

The note advocates for the adoption of a "gestational brightline rule" to resolve custody disputes arising from fertility clinic errors, arguing that this approach provides legal clarity, avoids emotional harm, and withstands constitutional scrutiny. It critiques the intent test for its inadequacy in such cases and proposes that the gestational mother should be awarded custody, with exceptions for cases involving felony or substance abuse by the birth mother. The rule is justified by the gestational mother's physiological and emotional connection to the child, as well as the need to prevent legal uncertainty and reduce litigation costs.

Disciplines

Law | Medical Jurisprudence

Recommended Citation

Josh Deutsch, Finders-Keepers: A Bright-Line Rule Awarding Custody to Gestational Mothers in Cases of Fertility Clinic Error, 12 Cardozo J. Equal Rts. & Soc. Just. 367 (2005).
Available at: https://larc.cardozo.yu.edu/cardozoersj/vol12/iss1/20