Journal of Health Care Law and Policy
Volume 18
|
Issue 1 Article 4
Traditional Surrogacy Contracts, Partial
Enforcement, and the Challenge for Family Law
Mark Strasser
Follow this and additional works at: h7p://digitalcommons.law.umaryland.edu/jhclp
Part of the Contracts Commons, and the Family Law Commons
6is Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for
inclusion in Journal of Health Care Law and Policy by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please
contact smccarty@law.umaryland.edu.
Recommended Citation
Mark Strasser, Traditional Surrogacy Contracts, Partial Enforcement, and the Challenge for Family Law, 18 J. Health Care L. & Pol'y 85 ().
Available at: h7p://digitalcommons.law.umaryland.edu/jhclp/vol18/iss1/4
85
TRADITIONAL SURROGACY
CONTRACTS, PARTIAL
ENFORCEMENT, AND THE
CHALLENGE FOR FAMILY LAW
MARK STRASSER*
I. INTRODUCTION
Surrogacy remains controversial.
1
Several states ban commercial
surrogacy
2
while several other states permit it,
3
subject to certain
conditions.
4
In addition, many state legislatures simply have not spoken to
the legality of surrogacy agreements.
5
Courts have addressed whether such
Copyright © 2015 by Mark Strasser.
*Trustees Professor of Law, Capital University Law School, Columbus, Ohio.
1. See Catherine London, Advancing a Surrogate-Focused Model of Gestational Surrogacy
Contracts, 18 CARDOZO J.L. & GENDER 391, 393 (2012) (explaining some of the modern
controversies surrounding surrogacy).
2. Austin Caster, Don't Split the Baby: How the U.S. Could Avoid Uncertainty and
Unnecessary Litigation and Promote Equality by Emulating the British Surrogacy Law Regime,
10 CONN. PUB. INT. L.J. 477, 486 (2011) (“[The] District of Columbia, Indiana, Michigan,
Nebraska, and North Dakota, have statutes that prohibit surrogacy contracts.”). See also Andrea B.
Carroll, Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents
Through Surrogacy, 88 IND. L.J. 1187, 1191 (2013) (listing the number of states that banned
surrogacy after Baby M).
3. See Dara E. Purvis, Intended Parents and the Problem of Perspective, 24 YALE J.L. &
FEMINISM 210, 232–33 (2012) (discussing different state limits in permitting surrogacy).
4. See id. at 233 (describing how some states enforce surrogacy agreements only if the
intended parents are a married heterosexual couple, while other states only enforce gestational
surrogacy agreements). See also Paul G. Arshagouni, Be Fruitful and Multiply, by Other Means, If
Necessary: The Time Has Come to Recognize and Enforce Gestational Surrogacy Agreements, 61
DEPAUL L. REV. 799, 807 (2012) (explaining that Florida, Nebraska, Nevada, New Hampshire,
New Mexico, and Washington ban any compensation outside of resaonable living costs, which
include medical, legal, and mental health expenses).
5. See SaraAnn C. Bennett, Comment, “There's No Wrong Way to Make A Family”:
Surrogacy Law and Pennsylvania's Need for Legislative Intervention, 118 PENN ST. L. REV. 407,
413–14 (2013) (stating that only 18 legislatures have enacted statutes that address surrogacy
arrangements, and have done so in three different ways: prohibition, inaction, and status
regulation).
86 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
contracts are enforceable in individual instances, either as a matter of public
policy
6
or, perhaps, because of a claimed breach of contract.
7
Two of the most well-known surrogacy cases
8
are In re Baby M
9
and
Johnson v. Calvert.
10
The former struck down a traditional surrogacy
11
agreement while the latter upheld a gestational surrogacy
12
agreement.
13
Together, these two holdings suggest a possible compromise, which has
been endorsed by various commentators.
14
Although courts might adopt the
position that gestational agreements—but not traditional surrogacy
agreements—are enforceable,
15
this is not the only possible view.
16
Some
6. See, e.g., In re Baby M, 537 A.2d 1227, 1234 (N.J. 1988) (invalidating a surrogacy
contract because it conflicts with state law and public policy).
7. Cf. J.F. v. D.B., 879 N.E.2d 740, 742 (Ohio 2007) (suggesting that there may be support
for a breach of contract claim in gestational surrogacy contract cases).
8. See Valarie K. Blake, Ovaries, Testicles, and Uteruses, Oh My! Regulating Reproductive
Tissue Transplants, 19 WM. & MARY J. WOMEN & L. 353, 388–89 (2013).
9. 537 A.2d 1227 (N.J. 1988).
10. 851 P.2d 776 (Cal. 1993).
11. See Sarah Mortazavi, Note, It Takes a Village to Make a Child: Creating Guidelines for
International Surrogacy, 100 GEO. L.J. 2249, 2253 (2012) (describing traditional surrogacy as a
procedure where sperm is used to artificially fertilize the birth mother’s own ovum).
12. See Tina Lin, Note, Born Lost: Stateless Children in International Surrogacy
Arrangements, 21 CARDOZO J. INT'L & COMP. L. 545, 550–51 (2013) (describing the process of
gestational surrogacy, where an embryo is created through in vitro fertilization—meaning the
sperm and the egg are combined outside of the surrogate’s body—and is then transferred to the
surrogate’s womb).
13. See Jami L. Zehr, Student Article, Using Gestational Surrogacy and Pre-Implantation
Genetic Diagnosis: Are Intended Parents Now Manufacturing the Idyllic Infant?, 20 LOY.
CONSUMER L. REV. 294, 304–06 (2008) (comparing In re Baby M, holding that the traditional
surrogacy contracts are illegal, with Johnson v. Calvert, upholding a gestational surrogacy
contract since it could be used to determine the intent of the parties).
14. See Arshagouni, supra note 4, at 844 (taking the opinion that a gestational surrogate
provides a valuable service to the intended parents of the child); Carroll, supra note 2, at 1192
(describing how the last decade has brought forth more American acceptance of surrogacy and
other different forms of assisted reproductive technologies); Michelle Elizabeth Holland,
Forbidding Gestational Surrogacy: Impeding the Fundamental Right to Procreate, 17 U.C. DAVIS
J. JUV. L. & POL'Y 1, 19 (2013) (“[T]he state's interest in preventing baby brokering is actually
supported by legalizing gestational surrogacy agreements.”); Chelsea Van Wormer, Outdated and
Ineffective: An Analysis of Michigan's Gestational Surrogacy Law and the Need for Validation of
Surrogate Pregnancy Contracts, 61 DEPAUL L. REV. 911, 929 (2012) (stating that Michigan
should enact new legislation validating gestational surrogacy contracts); see also Radhika Rao,
Hierarchies of Discrimination in Baby Making? A Response to Professor Carroll, 88 IND. L.J.
1217, 1218–19 (2013) (noting that the Uniform Parentage Act recommends that gestational
surrogacy contracts be deemed enforceable and effective to transfer parental rights, but does
nothing to clarify the legal status of traditional surrogacy).
15. See J.F. v. D.B., 879 N.E.2d 740, 741 (Ohio 2007) (holding that no public policy is
violated when a gestational surrogacy contract is entered into); see also id. at 742 (stating that a
gestational surrogate may have a different legal position from a traditional surrogate).
16. See In re Baby, No. M2012–01040–COA–R3–JV, 2013 WL 245039 (Tenn. Ct. App. Jan.
22, 2013) (holding a traditional surrogacy agreement enforceable), appeal docketed, 2013 Tenn.
App. LEXIS 470 (May 7, 2013).
2015] TRADITIONAL SURROGACY CONTRACTS 87
recent court decisions have adopted a different tack,
17
and the implications
of these decisions merit closer examination.
Part II of this Article traces the development of the jurisprudence
regarding the enforcement of surrogacy agreements, noting how there
seemed to be a consensus within the parameters set by state law.
18
Part III
addresses a few recent decisions in which traditional surrogacy contracts
were enforced, in whole or in part.
19
This Article concludes by noting some
of the counterintuitive implications of these latter decisions and explaining
how some of these undesirable effects might be avoided.
20
II. THE EVOLVING JURISPRUDENCE REGARDING THE ENFORCEABILITY OF
SURROGACY CONTRACTS
Over the past several decades, several courts have addressed the
enforceability of surrogacy contracts.
21
Many seemed to follow the lead
provided by Baby M and Johnson, namely, enforcing gestational but not
traditional surrogacy agreements.
22
While these courts did not explicitly
adopt this position, the reasoning and results in these cases seemed to
reflect that view.
23
A. Background
There are two types of surrogacy: traditional and gestational.
24
Traditional surrogacy involves a woman who is artificially inseminated
with a donor’s or the commissioning father’s sperm.
25
Gestational
surrogacy involves a procedure whereby embryos are created in vitro and
are later implanted within a surrogate’s uterus.
26
Those embryos may have
17. See, e.g., id. (holding a traditional surrogacy agreement as enforceable).
18. See infra Part II.
19. See infra Part III.
20. See infra Part IV.
21. See infra Part II.B–C.
22. See infra Part II.C.
23. See Raftopol v. Ramey, 12 A.3d 783 (Conn. 2011) (holding a gestational surrogacy
agreement enforceable); R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998) (holding a traditional
surrogacy agreement unenforceable); J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007) (holding a
gestational surrogacy agreement enforceable).
24. Tiffany L. Palmer, The Winding Road to the Two-Dad Family: Issues Arising in Interstate
Surrogacy for Gay Couples, 8 RUTGERS J.L. & PUB. POL'Y 895, 897 (2011).
25. See Mortazavi, supra note 11.
26. See id.
88 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
been created using the gametes of the commissioning couple or, instead,
may have been created using donor eggs or sperm.
27
Various costs and benefits are associated with these two forms of
surrogacy. While traditional surrogacy is less expensive and less medically
complicated than gestational surrogacy,
28
the traditional surrogate may be
more likely to bond with the child she is carrying because she and the child
are genetically related.
29
Further, after birth, the child may look like the
surrogate’s other children, which might make surrender of the child much
more difficult.
30
In contrast, the gestational surrogate does not have a
genetic connection to the child she is carrying, which will likely decrease
the probability that she will bond with the child during the pregnancy.
31
Additionally, after birth, surrender may be less difficult if the child does not
look like the surrogate’s other children,
32
which will make matters go more
smoothly and which may help avoid future litigation.
33
For these reasons,
among others, gestational surrogacy is both more common
34
and more
accepted than traditional surrogacy.
35
At least one factor influencing whether or which kind of surrogacy is
used is the degree to which the surrogacy agreement is enforceable.
36
State
27. Bennett, supra note 5, at 412.
28. See Alyssa James, Note, Gestational Surrogacy Agreements: Why Indiana Should Honor
Them and What Physicians Should Know Until They Do, 10 IND. HEALTH L. REV. 175,
179 (2013) (describing gestational surrogacy as a process that involves significant medical
procedures and expense). See also Rao, supra note 14, at 1221 (discussing the cheaper and less
invasive low-tech procedure of artificial insemination).
29. See Amy M. Larkey, Note, Redefining Motherhood: Determining Legal Maternity in
Gestational Surrogacy Arrangements, 51 DRAKE L. REV. 605, 610 (2003) (explaining how the
biological connection between a surrogate mother and the child can create a bond between them).
30. See In re Baby M, 537 A.2d 1227, 1236 (N.J. 1988) (referencing a situation where the
surrogate mother became upset upon seeing the baby and believing they shared a physical
resemblance).
31. See Elizabeth S. Scott, Surrogacy and the Politics of Commodification, LAW & CONTEMP.
PROBS., Summer 2009, at 109, 141 (describing how a gestational surrogate is less likely to form a
bond with the child because of the lack of a genetic connection).
32. Cf. supra note 31 and accompanying text.
33. Cf. Gaia Bernstein, Unintended Consequences: Prohibitions on Gamete Donor Anonymity
and the Fragile Practice of Surrogacy, 10 IND. HEALTH L. REV. 291, 308 (2013) (citing the fact
that U.S. medical practitioners endorse a preference for gestational surrogacy because it is a
legally safer practice).
34. See June Carbone, Negating the Genetic Tie: Does the Law Encourage Unnecessary
Risks? 79 UMKC L. REV. 333, 337 (2010) (explaining that gestational surrogacy quickly replaced
traditional surrogacy); Anne R. Dana, Note, The State of Surrogacy Laws: Determining Legal
Parentage for Gay Fathers, 18 DUKE J. GENDER L. & POL'Y 353, 363 (2011) (stating that
gestational surrogacies account for 95% of surrogacy arrangements in the United States).
35. Cf. Carroll, supra note 2, at 1191 (describing how gestational surrogate mothers are less
offended by the arrangement because they have no genetic connection to the child).
36. See Lindsey Coffey, A Rights-Based Claim to Surrogacy: Article 23 of the Convention on
the Rights of Persons with Disabilities, 20 MICH. ST. INT'L. L. REV. 259, 275 (2012) (describing
2015] TRADITIONAL SURROGACY CONTRACTS 89
courts differ about the conditions under which such agreements are void
because it violates an important public policy; no one view has gained
general acceptance.
37
B. Baby M
In re Baby M
38
was one of the first challenges to a surrogacy
agreement that was decided by a state supreme court.
39
The New Jersey
Supreme Court found that the surrogacy contract was void,
40
although it
upheld the custody award to the biological father.
41
William Stern was married to Elizabeth Stern, who had learned that
she might have multiple sclerosis and that her carrying a child to term might
pose significant health risks.
42
William Stern and Mary Beth Whitehead
entered into a contract providing that “through artificial insemination using
Mr. Stern’s sperm, Mrs. Whitehead would become pregnant, carry the child
to term, bear it, deliver it to the Sterns, and thereafter do whatever was
necessary to terminate her maternal rights so that Mrs. Stern could
thereafter adopt the child.”
43
Mary Beth Whitehead was married to Richard
Whitehead, who was also a party to the contract, and Richard Whitehead
promised to do all he could to rebut the presumption of paternity.
44
Mary Beth Whitehead’s (“Whitehead”) pregnancy was uneventful, and
she gave birth to a little girl.
45
Whitehead had bonded with the child during
pregnancy, however, and decided that she could not part with the child.
46
That Whitehead might have difficulty parting with the child had been
foreseen prior to insemination by a psychologist, although the Sterns had
not been informed about that possible difficulty.
47
how some countries and states have laws restricting the types of surrogacy agreements that will be
enforceable in that jurisdiction).
37. Compare In re Baby M, 537 A.2d 1227, 1234 (N.J. 1988) (invalidating a surrogacy
contract because it conflicts with the law and public policy of the state of New Jersey), with In re
F.T.R., 833 N.W.2d 634, 649–50 (Wis. 2013) (holding that the interests supporting enforcement
are more compelling than the interests against enforcement of surrogacy agreements).
38. 537 A.2d 1227 (N.J. 1988).
39. See Keith J. Hey, Assisted Conception and Surrogacy-Unfinished Business, 26 J.
MARSHALL L. REV. 775, 787–89 (1993) (discussing a number of cases heard during the 1980s
wherein state appellate courts avoided directly ruling on the validity of surrogacy contracts).
40. Baby M, 537 A.2d at 1234.
41. Id.
42. Id. at 1235.
43. Id.
44. Id.
45. Id. at 1236.
46. Id. at 1236–37.
47. Id. at 1247–48.
90 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
Whitehead turned the child over to the Sterns, but was unable to eat or
sleep after doing so.
48
She went to the Sterns and explained that she was
disconsolate—if Whitehead could have the child for a week, then she would
be able to surrender the child.
49
The Sterns permitted Whitehead to have
the child for a week.
50
Rather than return the child once the week had passed, Whitehead fled
the state.
51
Eventually, the Sterns located her and were able to have Baby M
returned to New Jersey.
52
The Sterns then filed to have custody of Baby M,
to have Whitehead’s parental rights terminated, and to have Mrs. Stern
adopt Baby M.
53
The trial court upheld the validity of the surrogacy contract, but also
found that Stern should be awarded custody of the child using a best
interests analysis.
54
The New Jersey Supreme Court affirmed the trial
court’s best interests analysis and conclusion, but rejected the validity of the
contract.
55
The New Jersey Supreme Court likened the surrogacy contract
to baby-selling.
56
The New Jersey high court articulated several of its concerns about
surrogacy, which included the concern that the biological parents are
deciding who would have custody of the child without considering which
parent would best promote the interests of the child.
57
While the court’s
point is true, it is misleading. In this case, the child would never have come
into existence but for the agreement that the Sterns would raise her.
58
It is
thus surprising to suggest that the parents who commissioned the contract
48. Id. at 1236.
49. Id. at 1236–37.
50. Id. at 1237.
51. Id.
52. Id.
53. Id.
54. See id. at 1237–38 (describing that the court found that it was in the best interests of the
child to return it to the mother and father).
55. Id. at 1238.
56. See id. at 1241, 1242 (describing the surrogacy arrangement as a private placement
adoption for money, and referring to surrogacy arrangements as “baby selling” and “baby-
buying”).
57. Id. at 1246 (holding that the surrogacy contract’s basic premise bears no relationship to
the settled law that custody shall be determined by the child’s best interests).
58. See Louis Michael Seidman, Baby M and the Problem of Unstable Preferences, 76 GEO.
L.J. 1829, 1832 (1988) (stating that a child born as a result of a surrogacy contract is substantially
distinguishable from the child of divorced parents or adopted children because the contract is the
“but for” cause of the child’s existence).
2015] TRADITIONAL SURROGACY CONTRACTS 91
were ignoring the child’s best interests, as if it might have been better for
the child never to exist than to have been raised by the Sterns.
59
The court also worried that surrogacy was contrary to state public
policy, in that it was intended to produce a child who would not be living
with both biological parents.
60
Here, too, the court’s point is misleading.
Many couples have children anticipating that they will raise the child
together; further, should the parents’ relationship end, the state seeks to
assure that each parent will continue to play a role in the child’s life.
61
In a
surrogacy arrangement, the commissioning couple envisions raising the
child together, and in some cases, it might be confusing and harmful if the
child continues to have contact with the surrogate.
62
The Baby M court reasoned that the “surrogacy contract violates the
policy of this State[, which is] that the rights of natural parents are equal
concerning their child, the father’s right no greater than the mother’s.”
63
Yet, merely because the rights of only one parent are terminated hardly
establishes that the rights of the two parents are not being treated equally
(depending upon the basis of the termination).
In the surrogacy context, the surrogate’s parental rights are being
terminated because of the agreement rather than because the father’s rights
are of greater value.
64
Certainly, there will be times when a court should
refuse to enforce a promise to surrender parental rights as a matter of public
policy,
65
but the New Jersey high court did a disservice when implying that
a parent having his or her parental rights terminated must mean that the
other parent’s rights are being weighed more heavily.
The Baby M court worried that the surrogate would not be making an
informed and voluntary decision since she is agreeing to give up the child
59. See id. (arguing that enforcement of a surrogacy contract maximizes social welfare
because the potential psychological harm to the mother outweighs the harm associated with the
child’s nonexistence).
60. In re Baby M, 537 A.2d 1227, 1246–47 (N.J. 1988) (holding that the public policy of
New Jersey is that whenever it is possible, children should be in the custody and care of both of
their natural parents).
61. See Note, Lawyering for the Child: Principles of Representation in Custody and Visitation
Disputes Arising from Divorce, 87 YALE L.J. 1126, 1132 (1978) (discussing how the state seeks to
maintain the relationship between the child and custodial parent even when the relationship
between the parents has ended).
62. See In re F.T.R., 833 N.W.2d 634, 640 (Wis. 2013) (discussing how expert witnesses
have stated that it can be harmful for children to have contact with the surrogate that gave birth to
them).
63. In re Baby M, 537 A.2d at 1247.
64. Cf. J.F. v. D.B., 879 N.E. 2d 740, 741–42 (Ohio 2007) (holding that the the parental rights
of the surrogate can be terminated via a contract).
65. See, e.g., Matos v. Matos, 932 So.2d 316, 320 (Fla. Dist. Ct. App. 2006) (explaining that
an agreement can be modified by a court if it was made via fraud, deceit, duress, coercion,
misrepresentation, or overreaching).
92 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
before knowing the strength of her bond with that child.
66
This is exactly
the wrong test to use. Imagine the possible effects on a child’s self-esteem
when he is told that his surrogate mother gave him up after having had
ample time to assess the strength of her bond with him.
67
The court described surrogacy as involving “the sale of a child, or, at
the very least, the sale of a mother’s right to her child,”
68
stating that this
kind of arrangement implicates “[a]lmost every evil that prompted the
prohibition on the payment of money in connection with adoptions.”
69
Yet,
this, too, is inaccurate.
70
Surrogacy does not involve an individual who
unwillingly became pregnant and is now pressured to act because she is
poor and unable to take care of the child herself.
71
Instead, in a surrogacy
arrangement, the pregnancy is planned and the agreement to surrender
parental rights was made before the onset of the pregnancy.
72
Further, in
many cases, the child is being given to the child’s biological father rather
than to some stranger who simply bought the child.
The Baby M court understood that there would be few, if any,
surrogacy agreements if commercial surrogacy agreements were
unenforceable because it is against public policy, but seemed to believe that
society would be better off without surrogacy entirely.
73
In another
surrogacy decision analyzing the enforceability of a gestational surrogacy
66. Baby M, 537 A.2d at 1248.
67. Cf. Linda Carroll, New Study Tracks Emotional Health of ‘Surrogate Kids’, TODAY (June
19, 2013, 4:46 AM), http://www.today.com/health/new-study-tracks-emotional-health-surrogate-
kids-6C10366818 (discussing an academic study that suggests that children may struggle with the
fact that they grew in an unrelated woman’s womb).
68. Baby M, 537 A.2d at 1248.
69. Id.
70. See, e.g., In re F.T.R., 833 N.W. 2d 634, 646 (Wis. 2013) (explaining that making certain
payments to a surrogate may not necessarily implicate the “undue influence” concerns behind
Wisconsin’s statutory prohibitions on adoptive parents making certain payments to the birth
mother).
71. See, e.g., Angie Godwin McEwen, Note, So You’re Having Another Woman’s Baby:
Economics and Exploitation in Gestational Surrogacy, 32 VAND. J. TRANSNAT’L L. 271, 294
(1999) (noting that the parties involved in the Baby M case were not poor, had modest incomes,
and a high level of education). It is true that the Baby M court mentioned income disparity. See
Baby M, 537 A.2d at 1249 (“Intimated, but disputed, is the assertion that surrogacy will be used
for the benefit of the rich at the expense of the poor.”). The court admitted, however, that the
parties in this case do not fit this description. See id.
72. See Joanna K. Budde, Comment, Surrogate Parenting: Future Legislation to Eliminate
Present Inconsistencies, 26 DUQ. L. REV. 633, 640 (1988) (stating that a key part of a surrogacy
agreement is the relinquishment of parental rights before the birth of the child).
73. See Baby M, 537 A.2d at 1248, 1250 (acknowledging that making commercial surrogacy
contracts unenforceable will likely lead to the elimination of the practice, and that the harm that
derives from surrogacy is obvious).
2015] TRADITIONAL SURROGACY CONTRACTS 93
contract, the California Supreme Court rejected the theory that surrogacy, as
a general matter, is contrary to public policy.
74
C. Johnson and Progeny
In Johnson v. Calvert, the California Supreme Court addressed the
enforceability of a gestational surrogacy agreement. Mark and Crispina
Calvert were a married couple wishing to have a child.
75
Crispina had
undergone a hysterectomy, and although she could produce eggs, she could
not sustain a pregnancy.
76
Anna Johnson heard about their plight and offered to act as a
surrogate.
77
Johnson and the Calverts entered into a surrogacy contract,
whereby Anna agreed to act as a gestational surrogate for the embryos
created using the Calverts’ gametes and would surrender any rights that she
had upon the birth of the child she was carrying.
78
During the pregnancy,
however, relations between Ms. Johnson and the Calverts cooled
considerably.
79
Both Cristina and Anna claimed to be the mother of the child—
Crispina, because of her genetic connection to the child, and Anna, because
she carried the child to term.
80
The California Supreme Court explained that
because each party had presented acceptable proof of maternity, it was
necessary to consider the intentions of the parties to determine who was the
child’s legal mother.
81
Reasoning that the pregnancy would never have
taken place but for Anna’s agreement that Crispina would be the child’s
mother, the court concluded that where each of the two women can claim
maternity either by having gestated the child or by having a genetic link to
the child, then “she who intended to bring about the birth of a child that she
intended to raise as her own—is the natural mother under California law.”
82
Johnson offered some of the arguments that had won the day in Baby
M, including the argument that surrogacy should be likened to baby-
74. See Johnson v. Calvert, 851 P.2d 776, 785 (Cal. 1993) (holding that surrogacy contracts
are not a violation of public policy and thus are not unenforceable on public policy grounds).
75. Id. at 778.
76. See id. (discussing how Crispina had a hysterectomy and thereby could not get pregnant).
77. Id.
78. Id.
79. Id.
80. Id. at 781.
81. See id. at 781–82 (stating that California law does not recognize more than one mother,
and as a result, in order to determine custody, it is necessary to look at the intention of the parties
when forming the surrogacy contract).
82. See id. at 782.
94 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
selling,
83
and that the surrogacy contract required her to waive rights before
she knew the strength of her bond with the child.
84
The California Supreme
Court rejected the idea, however, that surrogacy was appropriately likened
to adoption for pay, reasoning that because the agreement had been made
prior to conception, the mother was not being lured by money to give up her
own child.
85
Unlike the Baby M court, which feared that surrogacy would
likely exploit the poor, the Johnson court thought the economic duress
implicated here was likely no more destructive than economic duress more
generally.
86
The Johnson court upheld a gestational surrogacy agreement where the
gametes had been provided by the commissioning couple.
87
Such a holding
does not entail that a traditional surrogacy agreement is also enforceable,
and a California appellate court addressed the enforceability of traditional
surrogacy contracts the year after Johnson was handed down.
88
In re Marriage of Moschetta
89
involved Robert and Cynthia
Moschetta, who contracted with Elvira Jordan (“Jordan”) to perform a
traditional surrogacy.
90
In November 1989, Jordan became pregnant
through artificial insemination.
91
The Moschettas’ marriage began to break
down a few months later, however, and Robert told his wife in April that he
wanted a divorce.
92
Jordan was informed about the Moschettas’ marital
difficulties in May while she was in labor, and she delivered the child,
Marissa, the following day.
93
Jordan began to have second thoughts about letting the Moschettas
have Marissa, but then relented when they said that they would stay
together.
94
Unfortunately, the marriage did not last.
95
Cynthia filed for a
83. See id. at 783–84 (arguing that surrogacy contracts are unenforceable on the grounds of
public policy, specifically citing Penal Code section 273, which prohibits payment for adoption of
a child).
84. Id. at 784.
85. See id. (holding that because the voluntary arrangement was made before pregnancy, the
surrogate was not in a vulnerable state when she entered into the contract).
86. Compare In re Baby M, 537 A.2d 1227, 1249 (N.J. 1988) (stating that it is far more likely
for potential surrogates to be amongst the poor than the wealthy), with Johnson, 851 P.2d at 785
(stating that there is no evidence to support the assertion that low-income women are exploited by
surrogacy arrangements).
87. Id. at 778, 782 (discussing the details of the surrogacy agreement and ultimately
upholding the agreement).
88. See In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 901 (Cal. Ct. App. 1994) (holding
that traditional surrogacy agreements are unenforceable).
89. Moschetta, 30 Cal. Rptr. 2d 893.
90. Id. at 895.
91. Id.
92. Id.
93. Id.
94. Id.
2015] TRADITIONAL SURROGACY CONTRACTS 95
legal separation and sought to establish her parental relationship as a de
facto parent, while Jordan sought to join the dissolution action.
96
The court trifurcated the trial: (1) to decide the parental rights of
Cynthia and Jordan; (2) to decide custody and visitation; and (3) to decide
the dissolution of the marriage with respect to matters not involving
Marissa.
97
The court found that Robert and Jordan had parental rights, and
that each should have joint legal and physical custody.
98
Robert appealed,
challenging the finding that Jordan was the mother, instead claiming that
Cynthia was Marissa’s mother under the Uniform Parentage Act.
99
Robert
also argued that the surrogacy contract was enforceable.
100
The court noted that Cynthia had not sought to adopt Marissa, and
indeed, had filed a brief in support of the judgment below (i.e., in support of
Jordan being declared the mother).
101
The court concluded that Jordan was
the child’s mother and that the surrogacy contract could not be enforced
against her, although the court remanded the case for a reexamination of the
custody award.
102
While both the Moschetta and the Baby M courts found that the
surrogacy agreement was unenforceable against the traditional surrogate,
103
the holdings of each case are nonetheless distinguishable.
104
Moschetta
suggests that such agreements are voidable at the surrogate’s option, and
the agreement cannot be enforced against her.
105
On the other hand, Baby
M suggests that such agreements are void and unenforceable as a general
matter.
106
This difference is important in other kinds of surrogacy cases
where the surrogate wishes to enforce the contract against the
95. See id. (stating that within seven months of bringing Marissa home, Robert left, taking the
child with him).
96. Id.
97. Id.
98. Id.
99. Id.
100. Id.
101. Id. at 895–96.
102. Id. at 901–02.
103. See Moschetta, 30 Cal. Rptr. 2d at 901 (declining to enforce the traditional surrogacy
contract); In re Baby M, 537 A.2d 1227, 1240 (N.J. 1988) (holding the entire
contract unenforceable).
104. Compare Baby M, 537 A.2d at 1240 (suggesting that such agreements are voidable at the
surrogate’s option), with Moschetta, 30 Cal. Rptr. 2d at 901 (suggesting that such agreements are
void and unenforceable as a general matter).
105. See Moschetta, 30 Cal. Rptr. 2d at 900–01 (explaining that a contract giving rise to a
“traditional” surrogacy arrangement where a surrogate was simply inseminated with the husband's
sperm could not be enforced against the surrogate by the intended father).
106. See Baby M, 537 A.2d at 1238 (stating that the contract is “void”).
96 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
commissioning couple.
107
Perhaps the commissioning couple did not pay
all that was promised,
108
or perhaps the couple did not want the child after
all because the child had severe abnormalities.
109
California jurisprudence developed surrogacy case law further in In re
Marriage of Buzzanca, which involved a gestational surrogacy arrangement
where donor gametes were used for the commissioning couple.
110
The
couple separated after the surrogate became pregnant.
111
Luanne Buzzanca
claimed to be the child’s mother, but John Buzzanca argued that he was not
the child’s father.
112
The trial court agreed with John, concluding that the child had no legal
parents.
113
The court stated that the surrogate who gave birth to the child
was not the legal mother, and “the genetic contributors [we]re not known to
the court.”
114
Luanne was not the mother because she was not genetically
related to the child and had not carried the child to term, and John was not
the father because he had not contributed sperm to help create the child and
so had no biological relationship to the child.
115
The appellate court was
incredulous, describing the trial court’s conclusion as “extraordinary.”
116
Perhaps in anticipation of the court’s reaction to the holding that Jaycee had
no legal parents, John argued that the woman who gave birth to Jaycee was
her legal parent.
117
John claimed support for his position by citing Johnson, where the
California Supreme Court had used the intentions of the parties as a
tiebreaker for determining legal maternity when only one of the contenders
was genetically related to the child, and the other was the woman who
107. See Katherine Drabiak et al., Ethics, Law, and Commercial Surrogacy: A Call for
Uniformity, 35 J.L. MED. & ETHICS 300, 303 (2007) (discussing the state differences between
surrogacy law and contracts).
108. See Steven L. Miller, Comment, Surrogate Parenthood and Adoption Statutes: Can a
Square Peg Fit into a Round Hole?, 22 FAM. L.Q. 199, 210 (1988) (stating that if the couple
breaches their contract by failing to pay the surrogate, then the surrogate may sue the couple for
both the price of the contract, and expenses and the service fee).
109. See William Joseph Wagner, The Contractual Reallocation of Procreative Resources and
Parental Rights: The Natural Endowment Critique, 41 CASE W. RES. L. REV. 1, 139 n.620 (1990)
(noting the parties each refused to accept custody of the child because the infant suffered from
microcephaly).
110. 72 Cal. Rptr. 2d 280, 282 (Cal. Ct. App. 1998).
111. Id.
112. See id. (noting that while Luanne claimed to be the mother, in John’s petition for
dissolution of marriage, he alleged that there were no children of the marriage).
113. See Buzzanca, 72 Cal. Rptr. 2d at 282.
114. Id. at 282, 284.
115. Id. at 282.
116. Id.
117. See id. at 288 (discussing John's argument that the court should declare the surrogate as
the lawful mother).
2015] TRADITIONAL SURROGACY CONTRACTS 97
delivered the child.
118
In response, the Buzzanca court reasoned that the
California Supreme Court had said that maternity may be established by
showing genetic connection or that the woman had delivered the child,
119
but had not said that those were the only ways to establish maternity.
120
Ultimately, the Buzzanca court rejected John’s argument: Luanne should
not be considered Jaycee’s mother, analogizing Luanne to the husband who
consents to artificial insemination and then is held legally responsible for
the child thereby produced:
121
If a husband who consents to artificial
insemination under section 7613 is “treated in law” as the
father of the child by virtue of his consent, there is no
reason the result should be any different in the case of a
married couple who consent to in vitro fertilization by
unknown donors and [the] subsequent implantation into a
woman who is, as a surrogate, willing to carry the embryo
to term for them.
122
Artificial insemination is dis-analogous to gestational surrogacy
(where donated gametes are used) in that one of the spouses has a genetic
connection to the child in the former,
123
and neither spouse has any genetic
connection to the child in the latter.
124
The court viewed Luanne’s lack of
gestational or genetic role as “irrelevant” because the artificial insemination
“statute contemplates the establishment of lawful fatherhood in a situation
where an intended father has no biological relationship to a child who is
procreated as a result of the father’s (as well as the mother’s) consent to a
medical procedure.”
125
118. Id. at 284–85. See also Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993) (holding that
where the Act recognizes two different women as a possible legal mother, the court will look to
the intention to raise the child as her own to determine legal maternity).
119. See Buzzanca, 72 Cal. Rept. 2d at 284 (noting that the court in Johnson held that genetic
consanguinity was proof of maternity, just like evidence of giving birth).
120. See id. (explaining that the Johnson court did not say that only proof of birth or genetics
would be sufficient to establish maternity).
121. See id. at 288 (explaining that Luanne’s motherhood may be established by virtue of the
consent, like a husband in an artificial insemination case whose consent triggers the pregnancy
and eventual birth; therefore she is the legal mother).
122. Id. at 286.
123. See id. at 285 (noting that in artifical insemination, the wife may be inseminated artifically
with semen donated by another man that is not her husband).
124. See id. at 282 (stating that in this case, the child had no genetic connection to either
spouse).
125. Id. at 288.
98 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
Moschetta might seem to preclude a holding that Luanne was the
mother—the Moschetta court had suggested that Cynthia could not be the
mother of the child born to Jordan because Cynthia was not genetically
related to the child and had not delivered the child.
126
The Buzzanca court
distinguished that case, however, by noting that “[i]n Moschetta, this court
held that a contract giving rise to a ‘traditional’ surrogacy arrangement
where a surrogate was simply inseminated with the husband’s sperm could
not be enforced against the surrogate by the intended father.”
127
In contrast,
here, there was a gestational rather than a traditional surrogacy.
128
Further,
neither the woman who had donated the egg nor the woman who had
delivered the child was seeking custody.
129
Baby M, Johnson, Moschetta, and Buzzanca taken together suggest
that while gestational surrogacy agreements may be enforceable, traditional
surrogacy agreements will not be enforceable against the surrogate.
130
That
analysis is given further support in R.R. v. M.H.,
131
which involved an
attempt to enforce a traditional surrogacy agreement.
132
The biological
father and his wife created a traditional surrogacy contract with the
surrogate.
133
Pursuant to an agreement, a child was conceived via artificial
insemination.
134
During the sixth month of pregnancy and after having
received partial payment, the biological mother changed her mind about
parting with the child.
135
Unlike what had occurred in Baby M,
136
the biological mother in R.R.
had been psychologically evaluated, and the psychologist thought it was
126. Cf. In re Marriage of Moschetta, 30 Cal. Rptr. 2d, 893, 900 (Cal. Ct. App. 1994) (citing
Johnson v. Calvert, 851 P.2d 776 (Cal. 1993)) (holding that parentage is easily resolved in Elvira
Jordan because the surrogate had the two usual means of showing maternity—genetics and birth).
127. Buzzanca, 72 Cal. Rptr. 2d at 288.
128. See id. at 291 (noting that this was a “gestational surrogacy case”).
129. Id. at 290.
130. See id. at 293 (enforcing a gestational surrogacy contract against the divorcing husband
who denied being baby’s father); Johnson v. Calvert, 851 P.2d 776, 784 (Cal. 1993) (upholding a
gestational surrogacy agreement where the gametes had been provided by the commissioning
couple); In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 901 (Cal. Ct. App. 1994) (holding that
the surrogacy agreement was unenforceable against the traditional surrogate); In re Baby M, 537
A.2d 1227, 1234 (N.J. 1988) (holding the traditional surrogacy agreement to be unenforceable).
131. R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998) (holding that the surrogacy agreement
between the father and surrogate mother was unenforceable).
132. See id. at 791 (summarizing that in this case, a child was conceived through artificial
insemination based on a surrogate parenting agreement, providing that the father would have
custody and the surrogate would receive funds).
133. See id. (noting that both the mother and the father were married to others and had
executed a surrogate parenting agreement).
134. Id.
135. Id.
136. See In re Baby M, 537 A.2d 1227, 1247–48 (N.J. 1988) (noting that psychological
evaluation of the surrogate indicated that she might have difficulty surrendering the child).
2015] TRADITIONAL SURROGACY CONTRACTS 99
unlikely that the biological mother would have difficulty in surrendering the
child.
137
Once the mother decided to keep the child, she returned a check
for $3,500 to the father,
138
although she did not return the other money that
the father had previously sent to her for pregnancy related costs.
139
Notwithstanding the contractual specification that Rhode Island law would
govern
140
(which was where the father lived
141
), the Supreme Judicial
Court of Massachusetts decided the case in light of Massachusetts law.
142
The court found that the agreement was unenforceable
143
because the
couple used money to coerce the surrogate into the contract.
144
J.F. v. D.B. involved a gestational surrogacy agreement where
embryos created from the donor’s eggs and J.F.’s sperm were implanted in
D.B., eventually resulting in the birth of triplets.
145
J.F. and D.B. then had a
custody dispute, and J.F. sued D.B. for breach of contract.
146
The trial court
found that the surrogacy agreement was unenforceable because it required
D.B. to surrender parental rights, and because it allowed J.F. to recoup any
child support payments that he was ordered to make.
147
The intermediate
court reversed,
148
and the Ohio Supreme Court affirmed the intermediate
appellate decision.
149
The court explained that “[a] written contract
defining the rights and obligations of the parties seems an appropriate way
to enter into surrogacy agreement. If the parties understand their contract
rights, requiring them to honor the contract they entered into is manifestly
right and just.”
150
137. R.R., 689 N.E.2d at 792.
138. See id. at 793 (explaining that in May, the father’s lawyer sent the surrogate a check and
that the surrogate responded by saying she had changed her mind and wanted to keep the child,
and returned the check in June).
139. See id. (noting that while the mother returned one check, she made no attempt to refund
any pregnancy-related expenses).
140. Id. at 792.
141. Id. at 791.
142. See id. at 795 (noting that the court used the law of Massachusetts because it was where
the mother is a resident and where the child was conceived and born).
143. See id. at 796 (holding that statutory prohibitions of paid adoption suggest that a contract
for payment in exchange for custody should be given no effect in deciding the custody of the
child).
144. See id. (explaining that the agreement was void because the surrogate was induced with
money).
145. 879 N.E.2d 740, 740 (Ohio 2007).
146. Id.
147. Id.
148. Id. at 740–41.
149. Id. at 742.
150. Id. at 741.
100 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
While upholding the enforceability of gestational surrogacy
agreements, the Ohio Supreme Court expressly limited its decision.
151
The
court stated that it would be “remiss” if it were to fail to mention that
gestational surrogacy and traditional surrogacy implicate different legal
issues.
152
Because the case at hand did not involve a traditional surrogate,
the court did not address whether traditional surrogacy was against public
policy.
153
In Raftopol v. Ramey, the Connecticut Supreme Court also addressed
the enforceability of gestational surrogacy agreements.
154
The plaintiffs,
Anthony Raftopol and Shawn Hargon, were domestic partners who entered
into a gestational surrogacy agreement with Karma Ramey.
155
Prior to the
expected birth date of the twins, Raftopol and Hargon sought a declaratory
judgment enforcing the agreement and declaring that they were the legal
parents of the children, and that Ramey was not.
156
Following a hearing, the
trial court found that: “(1) the gestational agreement is valid; (2) Raftopol is
the genetic and legal father of the children; (3) Hargon is the legal father of
the children; and (4) Ramey is not the genetic or legal mother of the
children.”
157
The Department of Public Health appealed.
158
The Connecticut Supreme Court explained that Connecticut “statutes
and case law establish that a gestational carrier who bears no biological
relationship to the child she has carried does not have parental rights with
respect to that child.”
159
The court considered the argument that only
genetic parents can acquire parental rights by virtue of a gestational
agreement,
160
but noted that such a holding would lead to negative
“consequence[s], which [are] . . . so absurd as to be Kafkaesque.”
161
The
court described the “Kafkaesque” results if such arguments were valid:
Suppose [there is] an infertile couple who desire to have
children but cannot supply the womb, the eggs, or the
sperm . . . . These intended parents would need to rely on
third party egg and sperm donors to produce embryos that
151. See id. at 741–42 (noting in its holding that while not relevant to the case, a gestational
surrogate not involving her own egg may be different from traditional surrogates).
152. Id. at 742.
153. Id.
154. 12 A.3d 783 (Conn. 2011).
155. Id. at 787.
156. Id.
157. Id. at 788.
158. Id. at 786.
159. Id. at 789.
160. Id. at 796.
161. Id. at 797.
2015] TRADITIONAL SURROGACY CONTRACTS 101
are implanted in a gestational carrier pursuant to a
gestational agreement. If § 7–48a confers parental status
only on biological intended parents, the intended parents
are not the parents of any resulting child, nor are the
gestational carrier, any spouse she may have, the gamete
donors, or any spouses each may have. Every possible
parent to the child would be eliminated as a matter of law,
yielding the result of a child who is born parentless, not due
to the death of the parents, but simply due to elimination by
operation of law.
162
The Raftopol court nowhere noted that its imagined absurd
hypothetical reflected the reasoning and result offered by the Buzzanca trial
court.
163
Nor did it note that the Buzzanca intermediate appellate court had
similarly believed that such a holding and result was simply
“extraordinary.”
164
Where permitted to do so by statute,
165
many courts have enforced
gestational surrogacy contracts, sometimes reserving judgment about the
enforceability of traditional surrogacy contracts.
166
That left the
enforceability of traditional surrogacy agreements an open question,
although that approach also suggested that these courts viewed the two
types of surrogacy as dissimilar, and therefore subject to different legal
treatment. Some recent decisions suggest, however, that the two kinds of
surrogacy agreements will be treated much more similarly than had
previously been thought.
167
162. Id.
163. See generally id. at 783.
164. See generally id.
165. Some statutes expressly preclude the enforcement of such agreements. See id. at 802
n.37 (“Ten states prohibit compensated gestational agreements, including Florida, Kansas,
Kentucky, Louisiana, Nebraska, Nevada, New Hampshire, New Mexico, Virginia and
Washington.”).
166. See, e.g., J.F. v. D.B., 879 N.E.2d 740, 742 (Ohio 2007) (“[W]e would be remiss to leave
unstated the obvious fact that a gestational surrogate, whose pregnancy does not involve her own
egg, may have a different legal position from a traditional surrogate, whose pregnancy does
involve her own egg . . . .”).
167. See e.g., In re Baby, No. M2012–01040–COA–R3–JV, 2013 WL 245039, (Tenn. Ct. App.
Jan. 22, 2013) (affirming the validity of a traditional surrogacy agreement in which the surrogate
gave up her parental rights), appeal docketed, 2013 Tenn. App. LEXIS 470 (May 7, 2013); In re
F.T.R., 833 N.W.2d 634, 638 (Wis. 2013) (holding that the traditional surrogacy agreement is
valid aside from the termination of parental rights provision because that provision was prohibited
by state law).
102 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
III. A NEW TREND IN SURROGACY CONTRACT ENFORCEMENT?
Recently, one Minneapolis court enforced many of the provisions of a
traditional surrogacy agreement without speaking to its validity,
168
while a
Wisconsin court expressly enforced most, but not all, of such an
agreement’s provisions,
169
while still another court enforced such an
agreement in its entirety.
170
It is difficult to tell whether these decisions
reflect a new trend, but if so, states may have to clarify or rethink their
approaches to a variety of family law issues.
A. A.L.S.
A.L.S. ex rel. J.P. v. E.A.G. involved the enforceability of a traditional
surrogacy agreement between a surrogate and a gay couple that was made
following the surrogate’s advertisement for surrogacy services.
171
A child
was born (“A.L.S.”), who was released to the couple.
172
E.A.G., the
surrogate, twice visited A.L.S. in the home of R.W.S. and B.C.F., consistent
with the plan to have ongoing contact between her and the child.
173
Sometime after the second visit, however, E.A.G. had a change of heart and
refused to voluntarily surrender her parental rights.
174
When she next
visited, she tried to take A.L.S.
175
The police were called, and the police
left the child with R.W.S. and B.C.F.
176
R.W.S. and B.C.F. proposed an open adoption agreement, which
would have included visitation arrangements for E.A.G.
177
E.A.G. refused,
and later sued to establish R.W.S.’s paternity, alleging that A.L.S. was the
product of coital relations.
178
E.A.G. sought sole custody and child support
168. See A.L.S. ex rel. J.P. v. E.A.G., No. A10-443, 2010 WL 4181449, at *5 (Minn. Ct. App.
Oct. 26, 2010) (unpublished opinion) (declining to address the validity of the surrogacy contracts
not addressed by the trial court).
169. See F.T.R., 833 N.W.2d at 638 (Wis. 2013) (holding that the Parentage Agreement is an
enforceable contract, with the exception of the contract’s termination of parental rights provisions,
as long as the contract’s enforcement is not contrary to the child’s best interests).
170. See In re Baby, 2013 WL 245039, at *5 (explaining that the best interests analysis does
not apply if there is a valid surrogacy contract since the surrogate has given up her parental
rights).
171. See E.A.G., 2010 WL 4181449, at *1.
172. Id.
173. Id.
174. Id.
175. Id.
176. Id.
177. Id.
178. Id.
2015] TRADITIONAL SURROGACY CONTRACTS 103
from R.W.S.
179
R.W.S. admitted paternity, sought sole legal and physical
custody, standby custody for B.C.F., and child support from E.A.G.
180
In
addition, R.W.S. sought to enforce the surrogacy agreement.
181
There was a bench trial, and both the guardian ad litem and the
custody evaluator recommended that the child’s best interests would be
served by according R.W.S sole legal and physical custody.
182
The trial
court held that E.A.G. was not the child’s legal mother,
183
adjudicated
B.C.F. as a legal parent of their daughter, A.L.S., and awarded sole legal
and physical custody to B.C.F. and R.W.S.
184
The Minnesota appellate court reversed the trial court’s ruling that
E.A.G. should be likened to an egg donor, instead finding that she was the
child’s biological and legal mother.
185
The court further overruled the
designation of B.C.F. as one of the child’s parents.
186
The court, however,
upheld the trial court’s award of sole physical and legal custody to
R.W.S.
187
The appellate court noted that “while B.C.F. is and will continue
to be an important person in the child’s life, he is not a legal or biological
parent of A.L.S. under Minnesota law and is not entitled to custody of the
child on the facts of this case.”
188
The Minnesota appellate court expressly
refused to address the enforceability of the traditional surrogacy
agreement.
189
Several questions were left unanswered in this case, and there was no
remand to clarify some of these issues.
190
The trial court had found that
E.A.G. was not A.L.S.’s mother.
191
In addition, the court had expressed
concern that it might be harmful to A.L.S. if E.A.G. were to have
179. Id.
180. Id.
181. Id.
182. Id.
183. Id. at *2.
184. Id.
185. See id. at *2–3 (disagreeing with the district court that E.A.G. falls under the definition of
an egg donor, which would preclude her from being a biological or legal parent under the
Parentage Act).
186. See id. at *4 (concluding that B.C.F. is not A.L.S.’s biological father under the Parentage
Act (“PA”)).
187. Id. at *7.
188. Id.
189. See id. at *5 (concluding that the question of the contract’s enforceability is not properly
before this court).
190. See id. at *9 (indicating that the disposition of the appeal did not include a remand).
191. Id. at *2.
104 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
unsupervised visitation with the child, based on reports of E.A.G.’s conduct
during supervised visitation while this matter was on appeal.
192
At least one issue that would need to be resolved would be whether
E.A.G.’s supervised visitation should continue and, if so, whether it should
continue with the same limitations that the court had previously imposed.
193
E.A.G. suggested that the trial court had been biased against her, although
the appellate court rejected that contention.
194
Assuming that the trial
court’s visitation order would continue, E.A.G. could eventually seek a
modification if she could show a substantial change in circumstances,
195
although the trial court may not have envisioned its order as continuing
indefinitely, given its finding that E.A.G. was not the child’s legal parent.
R.W.S. had sought child support from E.A.G.,
196
which would not
have been granted in light of the finding that E.A.G. was not A.L.S.’s legal
parent. The appellate court reversed the trial court’s holding regarding
parental status,
197
however, which might make child support again at issue.
Or, E.A.G. might be told that child support would become an issue if
E.A.G. were to seek more contact with the child.
198
That said, the trial court
had believed that E.A.G. was asserting her parental rights as a way to
receive child support.
199
R.W.S. had sought to have B.C.F. awarded “standby custody,”
200
presumably to assure that B.C.F. would have legal custody of A.L.S. should
192. See id. at *5–6 (describing E.A.G.’s financial motives and indications of mental and
emotional instability as cause for concern for any unsupervised contact she may have with the
child).
193. See id. (discussing E.A.G.’s behavior during supervised visits as a consideration used to
make detailed findings regarding the statutory custody factors).
194. See id. at *9 (finding that the court did not believe that the district court judge showed
bias towards E.A.G.).
195. See MINN. STAT. § 518.18(d) (2013) (“[T]he court shall not modify a prior custody order
or a parenting plan provision which specifies the child's primary residence unless it finds, upon the
basis of facts, including unwarranted denial of, or interference with, a duly established parenting
time schedule, that have arisen since the prior order or that were unknown to the court at the time
of the prior order, that a change has occurred in the circumstances of the child or the parties and
that the modification is necessary to serve the best interests of the child.”).
196. E.A.G., 2010 WL 4181449, at *1.
197. See id. (reversing the district court’s parentage determination).
198. Sometimes, parents seek more visitation time to reduce child support. See D. Kelly
Weisberg, Professional Women and the Professionalization of Motherhood: Marcia Clark's
Double Bind, 6 HASTINGS WOMEN'S L.J. 295, 335 (1995) (“[F]athers may demand sole or joint
custody, or increased visitation, because they hope to lessen the amount of their child support.”).
Here, however, the threat that child support might be sought might deter E.A.G. from seeking
more contact.
199. See E.A.G., 2010 WL 4181449, at *6 (citing the district court’s observations, E.A.G.
intended to receive child support in addition to keeping the money she was paid through the
contract).
200. Id. at *1.
2015] TRADITIONAL SURROGACY CONTRACTS 105
anything happen to R.W.S. The Minnesota appellate court, however, denied
that B.C.F. had parental status under Minnesota law.
201
If something were
to happen to R.W.S., then E.A.G. would be the sole legal parent of
A.L.S.
202
While B.C.F. might be able to seek visitation in that event,
203
it
seems clear that the effect of the Minnesota appellate court decision posed
potential difficulties for all concerned parties.
B. F.T.R.
In In re F.T.R., the Supreme Court of Wisconsin addressed the
enforceability of a traditional surrogacy agreement between the Roseckys
and the Schissels.
204
The agreement specified that Monica Schissel would
be a traditional surrogate for the Roseckys.
205
Marcia Rosecky was unable to have children because of leukemia
treatments.
206
Knowing this, Monica offered to act as a surrogate for the
Roseckys, an offer that the Roseckys eventually accepted.
207
The couples
discussed using donor eggs, “but decided to use Monica’s egg because they
could be sure of Monica’s family history, there was a higher chance of
having multiples using a donor egg, and Monica preferred to use her own
egg.”
208
When Marcia expressed her fear that Monica would have difficulty
giving up a child to whom she was genetically related, Monica assured her
that there would be no such difficulty.
209
The parties thoroughly discussed
the ramifications of the surrogacy agreement.
210
Each couple retained
counsel, and the terms of the agreement were negotiated.
211
Monica became pregnant through artificial insemination, but shortly
before the child’s birth, she informed the Roseckys that she was unwilling
to surrender him.
212
When the child was born, Monica sought custody and
201. Id. at *4.
202. See id. at *3, *6 (ruling that E.A.G. and R.W.S. are A.L.S.’s only two legal parents, and
that B.C.F. is not A.L.S.’s legal parent—thus, if something were to happen to R.W.S., A.L.S.’s
only legal parent would be E.A.G.).
203. See MINN. STAT. § 257C.08 (Subd. 4.) (2013) (stating that if an unmarried minor who has
lived with a person other than a foster parent for two years or more and no longer lives with that
person, that person may petition for reasonable visitation rights for as long as the child is a minor).
204. In re F.T.R., 833 N.W.2d 634, 637 (Wis. 2013).
205. Id.
206. Id. at 638.
207. Id.
208. Id.
209. Id.
210. Id.
211. Id. at 638–39.
212. Id. at 637–38.
106 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
placement of F.T.R.
213
David Rosecky sought enforcement of the Parentage
Agreement (“PA”), where Monica had agreed to the termination of her
parental rights.
214
The trial court found that the PA was unenforceable, although it
awarded sole custody and primary placement to David, with Monica
receiving secondary placement.
215
David appealed.
216
The Wisconsin
Supreme Court concluded that “[a]side from the termination of parental
rights provisions in the PA at issue, . . . a PA is a valid, enforceable contract
unless enforcement is contrary to the best interests of the child.”
217
The circuit court held separate hearings to determine temporary
custody and placement on the one hand, and the enforceability of the PA on
the other.
218
At the former hearing, both the individual doing the custody
evaluation and the guardian ad litem recommended that David be awarded
custody, and that Monica should not have any placement.
219
The custody
evaluator worried that awarding custody to Monica would be destructive
because Monica wanted F.T.R. to view her, rather than Marcia, as his
mother, which would be very confusing to him.
220
In addition, the couples
were unable to work with each other since their relationship was “‘beyond
high conflict’ even though the parties did not swear or yell at each
other.”
221
Both David and the guardian ad litem argued that surrogacy
agreements were presumptively enforceable because that would help
provide stability and predictability.
222
David also sought to estop the
Schissels from contesting the agreement because the Schissels had said that
there was no need to get donor eggs, and the Roseckys had relied on that
statement to their detriment.
223
Perhaps fearing that the Wisconsin Supreme Court would not enforce
the surrogacy agreement, David also argued that it was not necessary to
terminate Monica’s rights “to effectuate the parties’ overall intent[, which
is] for the Roseckys to be the parents of F.T.R., with full custody and
placement.”
224
With this, David suggested that even if the court were to
213. Id. at 638.
214. Id. at 638–39.
215. Id. at 638.
216. Id.
217. Id.
218. Id. at 639.
219. Id. at 640.
220. Id.
221. Id. at 640–41.
222. Id. at 647.
223. Id.
224. Id.
2015] TRADITIONAL SURROGACY CONTRACTS 107
find that the agreement to terminate parental rights was unenforceable, the
termination of the parental rights provision of the agreement was severable,
and the remainder of the agreement could be enforced.
225
The Wisconsin
court accepted that analysis, concluding that “[a]side from the termination
of parental rights provisions, . . . the PA is a valid, enforceable contract
unless enforcement is contrary to the best interests of F.T.R.”
226
The Wisconsin court reasoned that “the interests supporting
enforcement of the PA are more compelling than the interests against
enforcement.”
227
The court further explained that the policy behind
enforcement of surrogacy agreements is that it “promotes stability and
permanence in family relationships because it allows the intended parents to
plan for the arrival of their child, reinforces the expectations of all parties to
the agreement, and reduces contentious litigation that could drag on for the
first several years of the child’s life.”
228
Yet, this opinion also left some matters unsettled.
229
Monica’s parental
rights were not terminated,
230
which presumably meant that she retained
rights of visitation as long as that visitation would be beneficial
231
or,
perhaps, not harmful
232
to the child. The Wisconsin Supreme Court,
however, obviously did not envision Monica having robust rights of
visitation.
233
The court noted disapprovingly that the “circuit court awarded
primary custody and placement to David and secondary placement to
Monica,” and remanded because “the circuit court erroneously exercised its
discretion by excluding the PA, and [by] rendering its custody and
placement decision without consideration of the PA.”
234
The court quoted
language in the surrogacy agreement, which specified that that the Schissels
would relinquish all parental and visitation rights, and that the Roseckys
225. Id.
226. Id. at 648–49.
227. Id. at 649.
228. Id. at 650.
229. See infra notes 271–74 and accompanying text (discussing how the failure to terminate
Monica’s parental rights presumably left her with visitation options that the Wisconsin Supreme
Court had not intended).
230. See F.T.R., 833 N.W.2d at 651 (noting the court’s reasoning that the portions of the PA
calling for the termination of Monica’s parental rights were unenforceable under the existing
statute).
231. Id. at 648 (citing the court’s reasoning that the PA is valid unless enforcement is not in the
best interest of F.T.R.).
232. See id. (noting that Monica argued that WIS. STAT. § 767.41(4)(b) prevents a court from
precluding placement with a parent only after a hearing and determination that placement with
that parent would endanger the child’s health).
233. See id. at 652 (noting that the circuit court had erroneously failed to consider the PA when
determining custody and placement of the child).
234. Id.
108 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
would be “sole legal parents.”
235
With the court’s holding though, Monica
was still a legal parent,
236
so the question is what this status conferred.
237
At the very least, it meant that Marcia was not F.T.R.’s legal parent;
238
an
unresolved issue, however, involved the conditions under which Monica
would have visitation and how extensive that visitation might be.
239
Further, it is unclear what would happen if David Rosecky died and both
Marcia and Monica sought custody.
The F.T.R. court suggested that the PA is enforceable “unless
enforcement is contrary to the best interests of F.T.R.”
240
Would it be in
F.T.R.’s best interests to visit with Monica? That might depend upon
whether Monica would attempt to undermine the Roseckys’ ability to
parent.
241
Regardless of how that was decided in this case, in subsequent
cases, a commissioning couple would be on notice that visitation might be
ordered if a judge thought that visitation would be in the child’s best
interests. This possibility undermines the Wisconsin court’s contention that
its holding “reinforces the expectations of all parties to the agreement, and
reduces contentious litigation that could drag on for the first several years
of the child’s life.”
242
Monica would not be ordered to pay support, notwithstanding her
status as a legal parent, because included within the PA was a provision
specifying that there was to be “no child support to be paid by [the
Schissels].”
243
Absent such a provision in the agreement, however, it is not
clear whether a judge might order child support.
244
Although the Wisconsin
235. Id. at 665 n.12 (noting language in the PA that required the Schissels to waive any claims
to custody, visitation, and physical placement of the child, the Roseckys to be the sole legal
parents, and the Roseckys’ home to be the sole parental home).
236. See id. at 651 (holding that the portions of the PA agreement that required Monica to
terminate her parental rights were unenforceable under the language of the existing statute).
237. See infra note 280 and accompanying text (noting that there were questions regarding
Monica’s parental status over F.T.R.).
238. See F.T.R., 833 N.W.2d at 646 (holding that under the current statutory scheme, Marcia is
left without any parental rights unless and until Monica terminates her own parental rights).
239. See infra notes 283–84 and accompanying text (noting that Monica’s visitation could
depend on whether Monica attempted to undermine the Roseckys parenting, despite contentions of
the Wisconsin Supreme Court that the agreement should minimize litigation early in the child’s
life).
240. F.T.R., 833 N.W.2d at 652.
241. See id. at 640 (noting Dr. Huebner’s testimony that placement with Monica would be
harmful to F.T.R. because of Monica's desire to replace Marcia as his mother, which would be
confusing for F.T.R.).
242. Id. at 649–50 (noting that the Wisconsin Supreme Court believed that the best interests of
F.T.R. would be served by enforcing the PA and thereby creating stability among the parties, and
denying the opportunity for potentially long-term litigation).
243. Id. at 665 n.12.
244. See WIS. STAT. § 767.511 (2014) (discussing when child support will be ordered in the
state of Wisconsin).
2015] TRADITIONAL SURROGACY CONTRACTS 109
court believed that it was clearing up a variety of issues regarding surrogacy
agreements by promoting stability and predictability and reducing further
litigation,
245
it is clear that there will likely be further litigation in surrogacy
cases, thus undermining the desired predictability and stability.
C. Baby
In re Baby
246
raised still other issues. At issue in this case was a
traditional surrogacy agreement.
247
Prior to the birth of the child, all parties
sought a declaration of parentage and a ratification of the surrogacy
agreement.
248
The juvenile court granted the petition.
249
The child was born
on January 12, 2012, and all of the parties agreed that it would be best for
the child to remain with the surrogate so that the surrogate could nurse the
baby for a few days.
250
After those few days had passed, the surrogate
sought to prevent removal of the child.
251
The surrogate argued that Tennessee law contemplates surrogacy
arrangements only in the context of the child being surrendered to the
biological father and his wife.
252
Because the commissioning couple did not
marry until a few weeks after the birth of the child, the child could not be
relinquished at birth to the biological father and his spouse.
253
The
surrogate argued that there had been no surrogate birth.
254
Neither the trial
court nor the intermediate appellate court believed that this technicality
245. See F.T.R., 833 N.W.2d at 649–50 (noting that the Wisconsin Supreme Court held that the
enforcement of the surrogacy agreement promoted stability and permanence in family
relationships because it allows the intended parents to plan for the arrival of their child, reinforces
the expectations of all parties to the agreement, and reduces contentious litigation that could drag
on for the first several years of the child's life).
246. No. M2012–01040–COA–R3–JV, 2013 WL 245039, (Tenn. Ct. App. Jan. 22, 2013),
appeal docketed, 2013 Tenn. App. LEXIS 470 (May 7, 2013).
247. Id. at *1.
248. Id.
249. See id. (stating that the petitions to modify parentage were granted and the juvenile court
issued a final order declaring parentage, ratifying the surrogacy agreement, and directing the
issuance of a birth certificate).
250. Id. at *2.
251. See id. (noting that the surrogate filed for a restraining order and injunction prohibiting
the child from being taken out of the country, and calling for the surrender of the child’s passport).
252. See id. at *5 (quoting Tennessee’s statutory definition of surrogate birth as “[t]he
insemination of a woman by the sperm of a man under a contract by which the parties state their
intent that the woman who carries the fetus shall relinquish the child to the biological father and
the biological father's wife to parent”) (emphasis added). See also TENN. CODE ANN. § 36-1-
102(48)(A)(ii).
253. See In re Baby, 2013 WL 245039, at *2 (noting that the intended parents were not actually
married until January 27, 2012, a full twenty days after the child’s birth).
254. See id. (noting that in each motion, the surrogates argued there was no “surrogate birth”
because the intended parents were not yet married).
110 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
justified voiding the agreement, given that the surrogate had long known
about the marital status of the parties, and had nonetheless accepted money
to be a surrogate.
255
The Tennessee appellate court concluded that the
“[s]urrogate’s last-minute change of heart does not provide a reason to
invalidate the final judgment approving the surrogacy contract.”
256
In this case, the couple may very well have married to take away a
possible ground for invalidating the surrogacy agreement, but it is simply
unclear whether their having done so was the reason that the surrogate’s
challenge to their parenthood was unsuccessful.
257
On the one hand, the
surrogate had known that the couple was unmarried and had still accepted
payment,
258
which would have provided some reason to issue that same
decision even if the couple had not married.
259
On the other hand, the trial
court suggested that “[i]t would be absurd to adopt the position that this was
not a surrogate birth because the Intended Parents were married 20 days
after the birth of the child.”
260
This suggests that the couple’s decision to
marry had been given some weight.
261
The Tennessee appellate court did not adopt the line offered by the
Wisconsin Supreme Court, where the Wisconsin Supreme Court stated that
the agreement was enforceable except insofar as parental rights were to be
terminated.
262
Instead, the Tennessee appellate court enforced the
agreement even with the foreseeable result that the surrogate would never
see the child again, if only because the family would be in Italy.
263
The Baby court faced a difficult task because the Tennessee
Legislature had not offered sufficient direction. Consider the relevant
statute:
255. Id. at *5.
256. Id.
257. See infra notes 313–15 and accompanying text (noting that legislation and court holdings
have failed to clarify issues regarding the Baby decision).
258. In re Baby, 2013 WL 245039, at *5.
259. See id. (noting that the surrogate parents’ last-minute position change was not based on
new information regarding the intended parents’ marital status, and therefore should not serve as a
reason to invalidate the surrogacy agreement).
260. Id.
261. See id. (noting the court’s recognition that the couple had married within a few weeks
after the child’s birth, and were not, in fact, two single parties seeking to raise a child).
262. Compare id. (holding there was nothing present in the current case to warrant invalidating
the surrogacy agreement between the surrogate parents and the intended parents), with In re
F.T.R., 833 N.W.2d 634, 652 (Wis. 2013) (holding that the PA is an enforceable contract with the
exception of the TPR portions of the contract).
263. See In re Baby, 2013 WL 245039, at *6.
2015] TRADITIONAL SURROGACY CONTRACTS 111
Surrogate birth” means:
(i) The union of the wife’s egg and the husband’s sperm, which are
then placed in another woman, who carries the fetus to term and who,
pursuant to a contract, then relinquishes all parental rights to the child to the
biological parents pursuant to the terms of the contract; or
(ii) The insemination of a woman by the sperm of a man under a
contract by which the parties state their intent that the woman who carries
the fetus shall relinquish the child to the biological father and the biological
father’s wife to parent;
(B) No surrender pursuant to this part is necessary to terminate any
parental rights of the woman who carried the child to term under the
circumstances described in this subdivision (48) and no adoption of the
child by the biological parent(s) is necessary;
(C) Nothing in this subdivision (48) shall be construed to expressly
authorize the surrogate birth process in Tennessee unless otherwise
approved by the courts or the general assembly.
264
(A)(i) discusses gestational surrogacy and (A)(ii) discusses traditional
surrogacy.
265
(B) suggests that neither termination of parental rights nor
adoption is necessary in the event that a surrogate birth occurs,
266
but (C)
suggests that this section does not authorize surrogacy “unless otherwise
approved by the courts or the general assembly.”
267
The legislature has not
taken subsequent action to authorize surrogacy,
268
although the legislature
has also not taken any action declaring such agreements illegal or
264. TENN. CODE ANN. § 36-1-102(48)(A)–(C) (2010).
265. See § 36-1-102(48)(A)(i)–(ii) (defining surrogate birth as either “the union of the wife's
egg and the husband's sperm, which are then placed in another woman, who carries the fetus to
term and who, pursuant to a contract, then relinquishes all parental rights to the child to the
biological parents pursuant to the terms of the contract,” or “the insemination of a woman by the
sperm of a man under a contract by which the parties state their intent that the woman who carries
the fetus shall relinquish the child to the biological father and the biological father's wife to parent
. . . .”).
266. See § 36-1-102(48)(B) (stating that a surrogate mother who carries a baby to term does
not need to surrender her parental rights, nor do the intended parents need to adopt the child for a
transfer of parental rights to occur).
267. See § 36-1-102(48)(C) (suggesting that only the courts or general assembly can approve a
surrogate birth process in Tennessee).
268. See In re Baby, 2013 WL 245039, at *4 (noting that the court had been unable to find, and
the parties had not been able to direct them to, a Tennessee statute regarding surrogacy birth
contracts).
112 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 18:85
unenforceable.
269
Because the legislature had defined the differing kinds of
surrogacy, but had done nothing to indicate which was contrary to public
policy, the intermediate appellate court “decline[d] to find such agreements
to be against public policy,”
270
and instead opted to “enforce [such
contracts] until the legislature instructs otherwise.”
271
At this point, it is simply unclear what to make of Baby, especially
because the Tennessee Supreme Court has granted permission to appeal.
272
Nonetheless, the court’s willingness to wholly enforce a traditional
surrogacy contract stands in sharp contrast to the position spelled out in
Baby M a little over 25 years ago.
273
IV. CONCLUSION
Up until recently, courts enforced gestational, but not traditional
surrogacy contracts.
274
In the past few years, however, a few courts have
effectuated the terms of such contracts, sometimes in addition to upholding
their validity in whole or in part.
275
It is simply unclear whether these few
decisions are outliers or, instead, reflect a modification of previously
existing trends.
If courts are going to be partially enforcing such contracts, courts will
need to be much clearer about a variety of matters. Suppose, for example,
that such contracts are enforceable except with respect to the termination of
parental rights. Courts will have to explain what the surrogate’s “parental
rights” entail. Would the surrogate be liable for child support assuming that
the contract did not address that issue? Or, perhaps, would the surrogate be
liable for child support if the contract included a provision stating that she
would be liable for such support if she refused to surrender her parental
rights? As a general matter, states promote visitation with a noncustodial
parent, absent a showing that such visitation would be harmful.
276
Courts or
legislatures will have to explain whether the same rules apply with respect
269. See id. (discussing Tennessee’s neutral legislative stance towards surrogacy agreements as
well as public policy).
270. Id.
271. Id.
272. See id. at *1 (“Application for Permission to Appeal Granted by Supreme Court May 7,
2013.”); see also 2013 Tenn. App. LEXIS 470 (May 7, 2013) (docketing the appeal).
273. See In re Baby M, 537 A.2d 1227, 1264 (1988) (holding that present laws make the
surrogacy contract unenforceable, but legislation could permit these contracts in the future).
274. See supra Part II.
275. See supra Part III.
276. See, e.g., N.M. v. R.G., 978 N.Y.S.2d 802, 808 (N.Y. Sup. Ct. 2014) (explaining that it is
a rebuttable presumption that noncustodial parents should be awarded visitation rights unless their
visitation would be harmful to the child).
2015] TRADITIONAL SURROGACY CONTRACTS 113
to traditional surrogates. If they do not, then much more will have to be said
regarding what it means to enforce all provisions except for the agreement
to terminate parental rights. Included within such a specification must be
what rights the surrogate would have with respect to custody or visitation if
the other biological parent were to die or have his own parental rights
terminated.
The Baby M court was concerned that surrogates might be subject to
exploitation.
277
In both F.T.R.
278
and A.L.S.,
279
the surrogate had offered
her services, just as had been true in Johnson,
280
presumably undercutting
the concern that the surrogates in those cases had somehow been coerced
into performing the surrogacy. While courts have not expressly suggested
that an important consideration in granting or denying the surrogate’s
parental rights is whether the surrogate made the initial offer, this factor
may play a role in the courts’ resolution of the issues. If that is so, then it
would be helpful for courts to make this aspect of their decisions clear.
Predictability is important for all parties in surrogacy arrangements,
and courts must consider some of the foreseeable difficulties that will arise
when holding that the surrogate’s parental rights cannot be terminated,
while at the same time expressly or impliedly denying that the surrogate has
many of the rights normally associated with parenthood. Such legal
positions are open invitations for further litigation, claims to the contrary
notwithstanding.
Should traditional surrogacy agreements be enforceable as a matter of
public policy? That is unclear. What is clear is that courts partially
enforcing such agreements must clarify the various implications of their
holdings, or else courts will neither promote predictability nor the interests
of the various parties that they allegedly seek to protect.
277. See Baby M, 537 A.2d at 1249 (reasoning that that the increase in availability for birth
control has lowered the amount of babies available for adoption, and therefore created a situation
ripe for exploitation for those seeking to increase the supply of available babies through the use of
money).
278. In re F.T.R., 833 N.W.2d 634, 638 (Wis. 2013).
279. A.L.S. ex rel. J.P. v. E.A.G., No. A10-443, 2010 WL 4181449, at *1 (Minn. Ct. App. Oct.
26, 2010) (unpublished opinion).
280. Johnson v. Calvert, 851 P.2d 776, 778 (Cal. 1993). In contrast, in both R.R. and Baby M,
the surrogacy arrangements had been made through a third party. See R.R. v. H.H., 689 N.E.2d
790, 791–92 (Mass. 1998) (explaining that both parties worked with the New England Surrogate
Parenting Advisors (“NESPA”)); Baby M, 537 A.2d at 1235 (explaining that the parties worked
with the Infertility Center of New York (“ICNY”)).
