Amicus Curiae
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TASC is pleased and honored to reprint the Amicus Curiae (friend of the court) brief filed on TASC's behalf in the case of R.R. v. M.H., presently pending before the Supreme Judicial Court of the Commonwealth of Massachusetts.
As we have previously alerted our TASC audience, the case involves an artificial insemination surrogate who has repudiated her surrogacy agreement and seeks to keep the child.
The case holds profound implications for any couple considering surrogacy as a family building option, as a blow against surrogacy in any venue is brandished by the opponents of surrogacy in other jurisdictions.
John J. Weltman, P.C. of Boston, Massachusetts has volunteered his time in representing TASC in order to lend a voice to TASC's audience and to those who do not wish to be deprived of surrogacy as a family building option.
John's brief is articulate and well-reasoned and can serve as a template for attorneys embroiled in similar controversies. It is also instructive for non-lawyers who wish to gain insight into current legal issues underpinning surrogacy.
Please contact John and express your appreciation for his efforts on our collective behalf.
For TASC
Mark A.Johnson
Marietta, GA
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
Action No. 07551
__________________
R. R., Appellantv.
M. H., Appellee
____________________THE AMERICAN SURROGACY CENTER, INC.'S
BRIEF OF AN AMICUS CURIAE
______________________John J. Weltman,
88 Black Falcon Ave.
Suite 345
Boston, MA 02210
Phone: (617) 439-4990
http://www.CircleSurrogacy.com
Counsel for The American Surrogacy Center, Inc.
TABLE OF CONTENTS
TABLE OF AUTHORITIES STATEMENT OF ISSUES STATEMENT OF FACTS SUMMARY OF ARGUMENT ARGUMENT I. ADOPTION LAWS SHOULD NOT BE APPLIED TO SURROGACY AGREEMENTS
A. Adoption Laws Are Not Intended To Legislate Surrogacy Agreements
B. The Waiting Period Required By Adoption Statutes Should Not Apply To Surrogacy Agreements
II. CONTRACTUAL PRINCIPLES SHOULD BE APPLIED TO ENFORCE SURROGACY AGREEMENTS
A. Enforcement Of Contract Protects All Parties
B. Intent Of The Parties As Set Forth In The Surrogacy Contract Should Determine Parental Status
III. CONSTITUTIONAL PRINCIPLES PROTECT THE INTENDED PARENTS' RIGHT TO ENFORCE SURROGACY AGREEMENTS
CASES:
Adoption of Galen, 425 Mass. 201 (1997)............................................... 5 & 22
Adoption of Tammy, 416 Mass. 205 (1993)................................... 5, 12, 21 & 22
Beacon Hill Civic Ass'n v. Ristorante Toscano, Inc., 422 Mass. 318 (1996)............ 19
Eisenstadt v. Baird,405 U.S. 438, 453 (1972)............................................... 28
Hastings Associates, Inc. v. Local 369 Bldg. Fund, Inc., 42 Mass. App. 162 (1997).. 19
Johnson v. Calvert, 19 Cal. Rptr. 2d 494,
502, cert. denied,
510 U.S.874(1993)..................................................... 14, 18, 24, 25, 26 & 29Michael H. v. Gerald D., 491 U.S. 110 (1989).............................................. 30
Roe v. Wade, 410 U.S. 113 (1973)............................................................ 28
Skinner v. Oklahoma, 316 U.S. 535 (1942).................................................. 28
Surrogate Parenting Assocs., Inc. v. Commonwealth of Kentucky, 704 S. W. 2d 209
(Ky. 1986)......................................................................................... 18
STATUTES AND OTHER AUTHORITIES:
Ark. code Ann. Section 9-9-209................................................................ 11
Section 9-10-201.................................................................................. 11
KRS 199.590(2).................................................................................. 12
M.G.L. c. 210......................................................................... 10, 12 & 17
M.G.L. c. 210, 11A.............................................................................. 17
"Restricting Surrogacy to Married Couples: A Constitutional Problem?"
18 Hastings Const. L. Q. 487, 503, 507 (1991)............................................. 29"Surrogacy: The Case For Full Contractual Enforcement,"
81 VA.L. REV. 2305, 2339 (1995)(Epstein, R)....................................... 14 & 23"Surrogate Parenthood and Adoption Statutes: Can a Square Peg Fit into a Round Hole?"
22 FAM. L. QTR. 199 (1988).................................................................. 18"Surrogacy: A Last Resort Alternative For Infertile Women or a Commodification of Women's Bodies and Children?" 12 Wis. Women's L. 5. 113 (1997)(Kerian, C.)................. 23
16 U. RICH. L. REV 467 (1992).............................................................. 17
54 Md. L. Rev. 488 (1995) (Brandie, A.)..................................................... 17
1. Whether Adoption Laws Should be Applied to Surrogacy Contracts?
2. Whether Contractual Principals Should be Applied to Enforce Surrogacy Contracts?
3. Whether Constitutional Principles Protect the Intended Parents' Right to Enforce Surrogacy Contracts
TASC is a national organization that provides resources, services, and education to couples across the nation and overseas who have been unable to conceive and carry a baby to term, and to surrogates interested in assisting them with having a child. TASC has an Internet Website (HTTP://www.surrogacy.com) at which most of the major surrogate professionals practicing all over the country provide information about their services and through which couples and surrogates who wish to find one another, with or without the assistance of an agency, meet. TASC provides information as well about the most up to date law in most of the 50 states and advises couples and surrogates about attorneys proficient in the law of surrogacy in their state.
As TASC provides its services to both couples and surrogates, its interest is not in favor of either the Appellant or the Appellee in this case, but in making sure that surrogacy remains a viable option in Massachusetts. Since the record remains sealed in this case, TASC has focused on three key issues, set forth above, and has relied, in drafting its brief, on the media accounts of the controversy.
The world of infertility has changed dramatically from the days 15 years ago when the world frowned upon "test tube babies" to a day in which these same in vitro fertilization ("IVF") procedures are covered by many insurance companies. The days have also changed from 10 years ago when Mary Beth Whitehead challenged a traditional surrogacy arrangement in a state without a law on surrogacy to a day in which thousands of couples have had children through surrogacy and many states have legislation and/or case law permitting surrogacy. In a state whose highest court has already recognized and legitimized biological gay families through its adoption procedure (which families could not exist were it not for sperm donation or surrogacy), 1 and whose lower courts have regularly permitted couples obtaining children through surrogacy to adopt those children, it is not a far step for this court to permit surrogacy to remain a viable option for all infertile couples.
Any decision this Supreme Judicial Court makes in this case will undoubtedly impact upon other types of surrogacy as well, and, therefore, it is essential that this Court fully appreciate the types of surrogacy available, and tailor its decision appropriately to the circumstances involved here. The situation presented in this appeal, that of traditional surrogacy, based on artificial insemination, is only one of the methods of achieving a birth through surrogacy currently available. "Gestational Surrogacy" (where the surrogate carries the fertilized egg of the couple, to which she has no genetic link) and "Donor Surrogacy" (where donated egg(s) are implanted into the surrogate along with sperm from the intended father) are two other means of surrogacy. Nationally, surrogacy remains one of the more secure means of arranging for and obtaining and maintaining custody of children for infertile couples. This Court should, therefore, permit surrogacy to continue in the Commonwealth, so long as the contract between the couple and the surrogate was freely and voluntarily entered into. Only this decision will appropriately recognize the difference between surrogacy and adoption, the governance of long established contractual principles and the constitutional rights of all parties involved.
Adoption laws should not be applied to surrogacy because the same concerns about a mother's desire to avoid an unwanted pregnancy that exist with adoption do not apply here. Here the surrogate mother intentionally undertakes the pregnancy to help an infertile couple that could not otherwise conceive. Granting surrogate mothers the right to withdraw their consent after the child is born (as is permitted in adoption) will only create lawsuits like the one involved here. It will also worsen the quality of the "pool of women" who consider being surrogates, since it allows them to wait and see how they feel after the birth of a child before they actually relinquish custody of the child. Such a post-birth determination is far worse in the surrogacy context then in adoption cases, because in adoption, the couple disappointed by the biological mother's change of heart go on their way, whereas in traditional surrogacy, the intended parents are forced to interact with a surrogate, as the father, at least, remains the biological parent, and may have to raise the child with the surrogate, with whom he never intended to co-parent. Finally, surrogacy does not involve baby selling, as can be the case with adoption. Surrogates are being paid, not for the child, but over the course of the pregnancy and even after the birth for the cost of their extra food, clothing, medical attention and lost wages, and for their services in abstaining from sexual contact, attending inseminations or surgical procedures, attending obstetrical appointments, and going through the birth of the child. Very often the child is not even biologically related to them, and always, it was not intended to be theirs. Whereas in adoption cases where a woman sells her baby, she receives compensation in one lump sum, after the pregnancy is complete, for handing over her own child to the couple. With these key differences, adoption and surrogacy should not be treated the same.
As the legislature has not declared surrogacy contracts to be against public policy, this Court should not do so. Though complex, emotionally charged and highly controversial, surrogacy agreements, like all contracts should be upheld unless one of the common law reasons for vitiating the contract - i.e. fraud, duress, undue inference, etc. - applies. Moreover, this Court should not presume to act as a paternalistic protector of women, when it long ago gave them the right to make equally difficult choices involving contraception, abortion, and adoption. To respectfully protect both parties and to avoid conflicts over surrogacy arrangements in the future, this Court should instead enforce the intent of the parties at the time the contract was formed, even if one side later has regrets. This approach will be the most beneficial to the welfare of the child, since the child's interest is most closely allied with that of the intended parents, the adults who chose to bring the child into being.
Constitutionally, the Supreme Court has already recognized the
fundamental right of privacy involved in all areas of procreation, including marriage,
family, child birth and child rearing. This has led it to protect an individual's right to
make a personal choice regarding sterilization, contraception and abortion. It has even
recognized the fundamental right to "bear or beget a child." Constitutional
rights support the intended couple's exercise of their right to procreate in order to form
a family of their own. It is the family unit that the Supreme Court has long protected,
even over the rights of a biological parent. In keeping with these principles, this Court
should recognize the enforceability of validly entered into surrogacy agreements.
I. ADOPTION LAWS SHOULD NOT BE APPLIED TO SURROGACY AGREEMENTS
In the absence of a statute regarding surrogacy, there is a temptation to fit the surrogacy issue into existing adoption statutes. This temptation, while understandable, must be avoided for several reasons. First, the adoption statutes were never intended to address a surrogacy dispute. Second, the policies behind the waiting period required in the adoption statute do not apply in the surrogacy context. And third, the "baby selling" prohibitions in the adoption statute are not violated by compensating the surrogate mother for her expenses and services.
A. Adoption Laws Are Not Intended To Legislate Surrogacy Agreements
The core of Massachusetts' adoption statute, M.G.L., c. 210, was enacted more than a century ago. While surrogacy is often said to date back to biblical times, 2 it is beyond dispute that the drafters of the adoption statute could not even fathom the surrogacy disputes that confront modern courts.
Perhaps the best indication that adoption laws do not suffice to address surrogacy, are the number of states that have enacted legislation regulating surrogacy. 3 The terms of the surrogacy statutes may be dramatically different than those of the state's adoption statutes. For example, in Arkansas, the adoption statute allows a "consent to adopt" to be withdrawn within ten days after the child is born. See Ark. code Ann. Section 9-9-209. In the case of a surrogate pregnancy, Arkansas legislates that the biological father and the intended mother (i.e. the father's wife), are the legal parents of a child born through a surrogate. Id. Section 9-10-201.
In Surrogate Parenting v. Commonwealth of Kentucky, 704, S. W. 2d 209 (Ky, 1986),4 the Supreme Court of Kentucky held that the adoption statute did not speak to the concerns of a surrogacy dispute. The court explains:
. . . there are fundamental differences between the surrogate parenting procedure . .. and the buying and selling of children as prohibited by KRS 199.590(2) which place this surrogate parenting procedure beyond the purview of present legislation.
Id. at 211 (emphasis supplied). In the court's view, the adoption statute had no place in evaluating a surrogacy contractbecause the surrogacy agreement is reached before conception:
The essential considerations for the surrogate mother when she agrees to the surrogate parenting procedure are not avoiding the consequences of an unwanted pregnancy or fear of the financial burden of child rearing. On the contrary, the essential consideration is to assist a person or couple who desperately want a child but are unable to conceive one in the customary manner to achieve a biologically related offspring. The problem is caused by the wife's infertility. The problem is solved by artificial insemination.
Id. at 211-212 (emphasis original).
B. The Waiting Period Required By Adoption Statutes Should Not Apply To Surrogacy Agreements
The adoption law of the Commonwealth provides that consent to relinquish parental rights is not binding until 4 days after delivery.5 While the legislature clearly has the power to require such a waiting period in the case of surrogacy contracts, this Court should not automatically apply regulations from the adoption statute to surrogacy contracts.
In the case of a surrogate pregnancy, the pregnancy is not a surprise nor is it unwanted. In the usual case, the surrogate had the opportunity to handpick the couple that she was interested in helping. The surrogate also had the opportunity to disclose and discuss the role she wished to play in the baby's future. 6 The surrogate is usually in communication with the intended parents during the pregnancy; the intended parents have significant medical involvement, attending doctors appointments, medical procedures, and the birth of the child with the surrogate. In the typical surrogacy case, the surrogate has had biological children of her own before becoming a surrogate.
The surrogacy birth is thus far different than an adoption contract, in which the mother may still be reeling from the shock of being pregnant, or may be parting with a child fathered by a man she still loves, or perhaps is sending her child into an unknown future.
A surrogate mother could, of course, insist upon a contract that allows her 72 hours or more to relinquish her parental rights. But the absence of such a provision should not vitiate a surrogacy contract. The Supreme Court of California rejected a gestational surrogate's agreement that her pre-birth waiver of parental rights was ineffective under the state's adoption laws. Johnson v. Calvert, 19 Cal. Rptr. 494, 502 (1993). The court held that the terms of the gestational surrogacy contract were not subject to the adoption statutes.
Indeed, Professor Richard A. Epstein, one of the preeminent legal scholars in this country, who teaches at the University of Chicago School of Law, sees a decided advantage in enforcing surrogacy contracts "come hell or high water." "Surrogacy: The Case For Full Contractual Enforcement," 81 VA.L. REV. 2305, 2339 (1995)(Epstein, R). The advantage to such an approach is that once "the legal regime is unmistakably clear," any woman with "doubts about her psychological willingness to part with her child will steer away from it." Id. The "wait-and-see" option, might create second thoughts by surrogates who otherwise would not second guess themselves. Women with doubts about their willingness to part with a child, may nonetheless allow themselves to become surrogates because of the "wait-and-see" policy.
Professor Epstein argues that this changes the "pool of women" for the worse and makes it nearly impossible for the intended parents to sort out which surrogate mothers really intend to follow through on their commitment. The wait-and-see approach works in adoption cases, explains Professor Epstein, because if the mother changes her mind there, she keeps her child and the adoptive parents, though certainly disappointed, are out of the picture. With surrogacy, in contrast, the intended father is often the biological father. He cannot walk away and start anew. The failure of a contract does not spell the end of a relationship. Id. at 2340. In fact, even in cases where courts refused to uphold the surrogacy contract, such as the Baby M case, the surrogate mother, Mary Beth Whitehead, still had to maintain a relationship with the biological father, who was awarded physical custody of the child. It is, therefore, inherently flawed to apply an adoptive waiting period to surrogacy agreements.
C. Compensation To The Surrogate Mother Does Not Violate The "Baby-Selling" Prohibitions In The Adoption Statutes
In a valid surrogacy arrangement, a surrogate is reimbursed for services rendered on behalf of the intended parents in obtaining psychological and medical clearance(including sexual disease testing), abstaining from sexual contact, performing ovulation tests on herself, attending inseminations (if a traditional surrogacy agreement is involved), taking medications and attending surgical implantations (if a gestational surrogacy is involved), presenting herself for pregnancy tests, regularly consulting with physicians, fulfilling pre-natal care, purchasing maternity clothes, presenting herself for an amniocentesis, attending regular psychological consultations, giving birth to the child, and bearing the physical, emotional, and medical risks of pregnancy and childbirth. A surrogate's reimbursement is largely a recognition of the substantial costs involved in a pregnancy, including, clothing allowances, medical bills, lost wages and the discomfort and partial disability involved in a pregnancy and birth.
Baby-selling prohibitions, as found in M.G.L. c. 210, 11A, are aimed at protecting both mother and child from the black market baby industry. Pregnant women, when choosing between abortion, adoption, and keeping the baby, may be persuaded by the notion of monetary gain. See e.g., Comments, Surrogate Mother Arguments: Contemporary Legal Aspects of a Biblical Notion," 16 U. RICH. L. REV 467, 478 (1992) "Baby-selling statutes," thus, are intended to prevent economic pressures from causing parents to sell already-born or expected children that they would otherwise keep. "Legislating Surrogacy: A partial answer to feminist criticism," 54 Md. L. Rev. 488, 502 (1995) (Brandie, A.).
Clearly "baby-selling" prohibitions are based upon assumptions not valid in the surrogacy context. The intended parents in a surrogacy agreement may also be the biological parents (such as the father here or the mother and father in a gestational surrogacy case). The intended parents cannot "buy" what is already theirs. Instead, the intended parents are compensating the surrogate for all of the services and expenses identified above. The Supreme Court of California made this point in Johnson v. Calvert, 19 Cal. Rptr. 2d 494, 502 (1993), cert. denied, 510 U.S. 874 (1993):
Gestational Surrogacy differs in crucial respects from adoption and so is not subject to the adoption statutes . . . . The payments under the contract were meant to compensate her for her services in gestating the fetus and undergoing labor, rather than for giving up "parental" rights to the child. Payments were due both during the pregnancy and after the child's birth. We are, accordingly, unpersuaded that the contract used in this case violates the public policies embodied in Penal Code section 273 and the adoption statutes.
Id. at 502.
The legislature of the Commonwealth may address the issue of surrogacy agreements.7 Until it does, however, there is no rationale for attempting to jam the square peg of surrogacy contracts into the round hole of adoption law.8 The adoption laws of Massachusetts simply do not address the policies of concerns of surrogate contracts.
II. CONTRACTUAL PRINCIPLES SHOULD BE APPLIED TO ENFORCE SURROGACY AGREEMENTS
A. Enforcement Of Contract Protects All Parties
Unless a contract is illegal or void as against public policy, the reasonable expectations of the contracting parties ought to be enforced.9 In Hastings Associates, Inc. v. Local 369 Bldg. Fund, Inc., 42 Mass. App. 162 (1997) (the Appeal Court held that courts do not go out of their way to discover some illegal element in a contract or to impose a hardship upon parties beyond that which is necessary to uphold the policy of the law). See also Beacon Hill Civic Ass'n v. Ristorante Toscano, Inc., 422 Mass. 318 (1996) (in determining whether an action violated public policy, the court looks to legislature's statutory enactment). Viewed in this light, surrogacy contracts must be analyzed within their contractual framework.
This does not mean, of course, that everyone needs to approve of surrogacy agreements. They do not. Certainly it is permissible to dislike that which is legal. But, as Professor Epstein states, this disapproval does "not offer sufficient reason to block the enforcement of contracts simply because people disapprove of the motives and actions of the parties to those arrangements. Tested against any general theory of contractual obligations, surrogacy contracts may be complex and difficult arrangements, as befits the powerful emotions tied to their subject matter. But they are also contracts deserving of full legal enforcement." Epstein, 81 Va. L. Rev. at 2341.
"As a general rule, the law follows the right course when it enforces serious premise unless there is a good reason not to do so." Epstein, 81 Va. L. Rev. at 2340. This does not mean that all surrogacy contracts will be enforceable. Parties to a surrogacy contract may use any of the defenses available in contract disputes: e.g., mistake, fraud and misrepresentation, duress, undue influence, to name a few. Close judicial supervision is vital to ascertain that the surrogacy agreement was voluntarily and freely entered into by all parties. If either side proves a valid defense, of course the contract should not be enforced. Many surrogate agreements require that the surrogate be financially stable, that she have psychological counseling, that she have her own children. These types of requirements assure that the contract was voluntarily agreed upon.
Barring a valid defense, the terms of the surrogacy agreement should be enforced. This court has long upheld the validity of a contract entered into by a woman to give up custody of her children, even if she later changes her mind. Domain v. Gwynne, 10 Allen 270 (Mass. 1865). No policy reason exists to bar enforcement of the contract. First, as demonstrated above, the adoption statutes cannot be stretched to apply to surrogacy agreements. Second, the Supreme Judicial Court has recently held that a biological mother and her female partner may both legally adopt the biological child of one produced by artificial insemination. Adoption of Tammy, 416 Mass. 205(1993). The court's recognition there of a gay couple's right to build a biological based family by less than traditional means is equally compelling here.10
Third, suggesting (as some have) that a woman is incapable of voluntarily agreeing to bear a child for an infertile couple, smacks of patronization. Women have the right to make reproductive choices such as contraception, abortion, and pregnancy.11 The government allows women to make these choices. There is no basis for suggesting that women need to be protected from their surrogacy choices. To hold otherwise would deprive women of a truly emancipated state and confer on woman a second-class position. See Generally "Surrogacy: A Last Resort Alternative For Infertile Women or a Commodification of Women's Bodies and Children?" 12 Wis. Women's L. 5. 113 (1997)(Kerian, C.); "Surrogacy: The Case For Full Contractual Enforcement," 81 Va. L. Rev. 2305 (1995) (Epstein, R.).
Fourth, no one is so callous as to be unmoved by the plea of a surrogate mother to keep the child to whom she gave birth. But this natural heart tugging should never replace reasoned legal analysis. A birth mother who changes her mind after a legal adoption, for example, may still touch the heart even though she is without a legal remedy. It is unfortunate but true that parties to a surrogacy agreement may end up regretting their choices. Such regret should not vitiate contractual choices. For surrogate contracts to have any value or utility, therefore, the challenger must do more than claim change of heart and regret. Traditional contract analysis protects both the surrogate and the intended parties. Just as the surrogate must live up to the contract expectations, so must the intended parents. Mutuality is the cornerstone of contract law. The surrogate benefits because she has an enforceable promise that the intended parents will not change their mind and leave her with the unwanted burden of another child. Surrogacy contracts cannot be determined ad hoc based upon regret, they must be governed by the terms of the contract.
B. Intent Of The Parties As Set Forth In The Surrogacy Contract Should Determine Parental Status
If the surrogacy contracts survives all valid contractual defenses, it ought to be enforced pursuant to the stated intent of the parties in the agreement. This is the conclusion of the court in Johnson v.Calvert:
[When the genetic consanguinity and giving birth] do not coincide in one woman, she who intended to procreate the child - that is, she who intended to bring about the birth of a child that she intended to raise as her own - is the natural mother . . .
19 Cal. Rptr. 2d at 500. The Supreme Court of California cited with approval Professor Hill who argued that "while all of the players in the procreative arrangement are necessary in bringing a child into the world, the child would not have been born but for the efforts of the intended parents . . . [T]he intended parents are the first cause, or the prime movers, of the procreative relationship." "What does it mean to be a Parent'? The Claims of Biology as the Basis for Parental Rights." 66 N.Y. U.L. Rev. 353, 415 (1991) (emphasis original).
The Calvert court rejected the birth mother's arguments that gestational surrogacy runs afoul of prohibitions on involuntary servitude or that surrogacy contracts "tend to exploit or dehumanize women, especially women of lower economic status." 19 Cal. Rptr. 2d at 502. The court concluded that there is "no proof that surrogacy contracts exploit poor women . . . . We are unmoved by the claim that surrogacy will foster the attitude that children are mere commodities." Id. at 503. Finally, the court rejected the argument that "a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents. . . . To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genetic stock." Id.
The decision in Johnson v. Calvert involved a gestational surrogacy contract. But certainly the court's analysis need not be limited to gestational agreements. Indeed, the Arkansas surrogacy statute, supra, deems the intended parents to be parents even in the traditional surrogacy context. Limitation of the court's holding to gestational surrogacy would only have the undesired effect of encouraging intended parents and the surrogate to use donor eggs even when not medically necessary, thus needlessly making the arrangement more complete and increasing the costs to the intended parents and the medical risks to the surrogate.
Enforcing the parties' intent, whether traditional or gestational surrogacy is at issue, ensures that surrogacy remains a positive family building option. Honoring the contractual expectations of the intended parents also benefits the child that was so desperately desired by the intended parents. One commentator noted, with reproductive technology, "steps can be taken to bring into being a child who would not otherwise have existed." "Reproductive Technology and Intent - Based Parenthood: An Opportunity for Gender Neutrality," 1990 Wis. L. Rev. 297, 323 (1990) (Shultz). According to Professor Shultz, the interests of the child will most certainly run parallel to the "adults who choose to bring them into being." Id. at 397. Thus, "[h]onoring the plans and expectations of adults who will be responsible for a child's welfare is likely to correlate significantly with positive outcomes for parents and children."
Id.
In the case of both traditional and gestational surrogacies, the child would not exist without the actions of the intended parents. To recognize the intended parents as the child's legal parents, enforces valid contractual terms and ensures the child's future legal stability and well-being.
III. CONSTITUTIONAL PRINCIPLES PROTECT THE INTENDED PARENTS' RIGHT TO ENFORCE SURROGACY AGREEMENTS
The United States Supreme Court has recognized the fundamental right of privacy as it relates to procreation, family relationships, and child rearing. Roe v. Wade, 410 U.S. 113 (1973). In Roe v. Wade, the state's interest in protecting the women's health and the potential life of the fetus were balanced against the woman's fundamental right of privacy. Id. at 153. An individual's right to procreate without undue governmental interference had earlier been acknowledged in Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (unconstitutional to order sterilization of habitual criminals); and Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (unmarried individuals right to use contraceptive devises; fundamental right to "bear or beget" a child).
These fundamental procreational rights ought equally to apply to alternative methods of reproduction. The values and interests the Supreme Court is protecting in its zone of privacy and procreation - - marriage, family, child birth, child rearing- - are equally involved when intended parents make their family-building choices. Surrogacy is, after all, conception and no more "artificial" than the contraceptive devices to which the Supreme Court recognized a right of access in Eisenstadt. Under the Due Process Clause, the fundamental right to "bear or beget a child" ought to include access to any means of procreation. "Restricting Surrogacy to Married Couples: A Constitutional Problem?" 18 Hastings Const. L. Q. 487, 503, 507 (1991).
The Calvert court examined these constitutional principles and determined that the intended parents, not the gestational surrogate, was protected by the right of privacy. The Supreme Court of California held that the constitutional cases "do not support recognition of parental rights for a gestational surrogate." 19 Cal. Rptr. 2d at 503. The court disagreed that a gestational surrogacy was the constitutional equivalent of the decision whether to bear a child of one's own. The court ruled: "A woman who enters into a gestational surrogacy arrangement is not exercising her own right to make procreative choices; she is agreeing to provide a necessary and profoundly important service without (by definition) any expectation that she will raise the resulting child as her own."
Id. at 505.
A traditional surrogacy could be viewed similarly. A traditional surrogate could fairly be viewed as one who is both donating her egg and is agreeing to gestate the pregnancy. Neither aspect alone receives constitutional protection and neither should they conceive that protection when combined. Indeed, biological parents may be denied constitutional protection in favor of protecting the family unit. See e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989) (state may constitutionally deny a man's parental rights with respect to a child he fathered during a liaison with the wife of another man since it is the marital family that traditionally has been accorded a protected liberty interest.)
Constitutional rights support the intended couple's exercise of their right to procreate in order to form a family of their own. Novel medical procedures do not lessen the couple's constitutionally protected right.
For all of these reasons, this Court should uphold the surrogacy agreement provided it was entered into under valid and binding contract principles.
Respectfully submitted,
__________________________________
John J. Weltman, P.C.,
88 Falcon Ave., Suite 345
Boston, MA 02210
Phone: (617) 439-4990
Email: John@CircleSurrogacy.com
Counsel for The American Surrogacy Center, Inc.
FOOTNOTES:
1 The cases of Adoption of Tammy, 416 Mass. 205 (1993) and Adoption of Galen, 425 Mass. 201 (1997), both of which deal with biological children born to and being raised solely by gay female couples,by analogy to the gay male population, constitue an implicit recognition by this court of the viablity of the only means gay couples have of obtaining biological children for them to raise alone , namely surrogacy.
2 Gensis 16: 1-2 The Old Testament tells of Sarah and Abraham's "barren" wife, who persuaded her husband to have intercourse with her maid Hagar. Hagar gave birth to Ishmael, who was raised by Sarah and Abraham.
3 To date, nineteen states and the District of Columbia have enacted statues addressing surrogacy.
4 As this is a case of first impression in Massachusetts, we have turned to the persuasive authority of other states that have addressed this issue.
5 Just as this Court in Adoption of Tammy, 416 mass. 205, 211 (1993) strickly construed the adoption statute, M.G.L. c. 210 and recognized that it did not prohibit adoptions by unmarried individuals, the court here should recognize that the same statute makes no reference anywhere to surrogacy.
6In contrast to adoption, surrogate mothers are almost always known to the children. The parties to the contract decide how much involvement is appropriate. It may range from annual Christmas cards to regular involvement in family events such as holiday dinners.
7See, e.g., Johnson v Calvert, 19 Cal. Rptr.. 2d 494, 502-3 )1993) (calling for legislation); Surrogate Parenting Assoc. v Kentucky, 704 S. W. 2d, 213 (Ky. 1986) (Same).
8"Surrogate Parenthood and ‰doption Statutes: Can a Square Peg Fit into a Round Hole?" 22 FAM. L. QTR. 199 (1988)
9A Legislature is often the arbiter of public policy. If it has not acted in the surrogacy context, it may be inferred that it does not, as a body, want to limit surrogacy. At the least, this Court should refrain from judicially legislating public policy until the legislature has acted.
10 Just as two lesbian women looking to conceive and raise a child on their own must turn to artificial insemination to have a biological child, so too two gay men looking to conceive and raise a child on their own must turn to surrogacy to have a biological child. In fact, the court has come so far since the Tammy case that it has essentially required a court to find a compelling reason before it can deny a gay couple's motion to waive a home study, See Adoption of Galen, 425 Mass. 201 (1997). It thereby lowers the barriers to second parent adoption by gay couples even more than before. Surely if this Court recognizes the right of gay couples to have children through surrogacy, it should not prohibit married infertile heterosexual couples from doing the same.
11Courts in this state permit persons to waive all kinds of fundamental constitutional, statutory and common law rights. Arrested persons can waive the right to remain silent and the right to an attorney. Arraigned persons can waive the right to a trial by jury. Mothers giving their children up for adoption can waive the right to custody. Divorcing parties can waive their rights to alimony and even to child custody in a divorce or separation agreement.
Thus, this Court has already recognized the rights of parents to give up custody of their children. It is not a far step then to permit a woman to give that consent before the child is conceived.
Failure to permit such consent to be given at the outset of a surrogate arrangement will otherwise allow women to lull long infertile couples into a sense of security regarding the surrogate mother's willingness to give up the child, leading them to conceive a child with her, only to pull the rug out from under them after their own biological child is born and keep it as her own.
November, 1997
Copyright 1997. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
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