## Facts

- A married couple pursued gestational surrogacy after the wife could not carry a pregnancy.
- The wife’s ova were fertilized in vitro using the husband’s sperm, and the resulting embryos were implanted in a gestational carrier who had no genetic relationship to the children.
- While the surrogate was pregnant with triplets, the wife filed for dissolution and sought shared custody of the unborn children.
- The husband asserted he was the biological father and argued that Arizona’s surrogate parentage contracts statute made the gestational carrier the legal mother, leaving the wife without standing to seek custody.
- After the triplets were born, the husband and the surrogate obtained an order naming the husband the natural father, and the husband took custody.

## Issues

1. Whether Arizona’s surrogate parentage contracts statute violates equal protection by allowing a biological father to establish legal parentage while denying a genetic mother any comparable means to assert parentage when another woman gives birth.
2. Whether special action relief should issue to overturn the trial court’s order declaring the statute unconstitutional and setting an evidentiary hearing regarding motherhood/custody.

## Decision

- The court accepted special action jurisdiction but denied relief.
- The court held the surrogate parentage contracts statute unconstitutional under the Equal Protection Clause of the United States and Arizona Constitutions.
- The court left in place the trial court’s order striking the statute and directing an evidentiary hearing to determine which claimant would be treated as the mother for custody purposes.

## Legal Principles

- A statutory scheme that conclusively assigns legal motherhood solely to the woman who gives birth, while permitting the biological father to establish or litigate parentage through paternity procedures, creates a gender-based classification if it forecloses the genetic mother from asserting parentage.
- Gender-based disparate treatment in access to legal recognition of parentage must satisfy equal protection requirements; a law cannot grant a father a path to legal parenthood while denying a similarly situated genetic mother any path.
- In disputes arising from assisted reproduction where genetic and gestational motherhood diverge, parentage and custody cannot be resolved by a rule that categorically excludes the genetic mother from consideration.

## Conclusion

The court invalidated Arizona’s surrogacy parentage statute on equal protection grounds because it allowed the father to secure legal parentage while barring the genetic mother from asserting parental status when a gestational surrogate gave birth, and it permitted the trial court to proceed with an evidentiary hearing to determine motherhood and custody.


Soos v. Superior Court, 897 P.2d 1356 (Ariz. Ct. App. 1994)