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Surrogate mom loses court fight
Baby goes to father for nowBy: Gary V. Murray
Telegram & Gazette Staff
August 20, 1997
Note: This article appeared in The Telegram and Gazette with the actual names of the parties involved. TASC has exchanged the names of the parties with the titles THE SURROGATE and THE INTENDED FATHER to protect their identities.
WORCESTER, MA - A Rhode Island man who agreed to pay an Athol woman $10,000 to be the surrogate mother for his child has been awarded temporary physical custody of the child born Aug. 15 in a legal dispute of the validity of the agreement.The case ultimately could decide the legality of surrogacy contracts in Massachusetts.
According to a decision issued Monday by state Appeals Court Judge J. Harold Flannery, THE INTENDED FATHER and THE SURROGATE entered into a "Surrogacy Parenting Agreement" in November. Under the agreement, THE SURROGATE, who is married, was to be paid $10,000 to donate an egg - which was artificially inseminated with THE INTENDED FATHER's sperm - to provide surrogate gestation and to turn over the child to THE INTENDED FATHER shortly after birth.
In May, however, during the sixth month of her pregnancy, THE SURROGATE told THE INTENDED FATHER she would not surrender custody of the child after birth, according to the ruling.
VISITATION RIGHTSOn June 25, THE INTENDED FATHER filed suit in Worcester Probate and Family Court to establish paternity and allege breach of contract on THE SURROGATE's part. THE INTENDED FATHER also filed a motion for a preliminary injunction seeking, in part, an order allowing him to be present at the birth. That motion was later allowed.
Six days later, THE SURROGATE filed a motion for a hearing to determine whether surrogacy contracts are enforceable in Massachusetts, a question yet to be decided by the state's courts.
Judge Susan D. Ricci began evidentiary hearing on the validity of the surrogacy contract on July 29. Three days later, she entered a preliminary injunction granting THE INTENDED FATHER temporary physical custody of the child pending final resolution of THE SURROGATE's motion to determine whether such contracts are enforceable in this state.
The injunction also granted THE SURROGATE joint legal custody and "liberal and frequent visitation with the child" as agreed to by the parties and lawyer Carol A. Erakine court-appointed guardian for the newborn. On Aug. 8, Ricci denied THE SURROGATE's request for reconsideration of her injunction ruling, but allowed THE SURROGATE's motion to report the case to the Appeals Court for a decision on the validity of surrogacy contracts in Massachusetts.
4-DAY DELAY
Ricci retained jurisdiction of the paternity claim and an inquiry into the best interest of the child, and continues to take evidence on the circumstances of the agreement.
THE SURROGATE, represented by Fitchburg lawyer Robert E. Terk, appealed Ricci's injunction ruling to a single justice of the Appeals court and sought a stay of the injunction until the full court can review the situation. Judge Flannery denied the stay and upheld the injunction.
While noting the "Enforceability of the surrogacy contract is an issue of first impression," Flannery considered the likelihood of each side prevailing.
Looking for guidance to the laws governing adoption and children born out of wedlock, Flannery wrote that there is a "distinct possibility" the surrogacy contract in question is unenforceable.
The adoption laws, he said, provide that a mother cannot give valid written consent to surrender a child for adoption until at least four days after birth. "At minimum, that portion of the contract requiring the child to be surrendered to the father's custody immediately after birth is questionable," according to Flannery.
THE INTENDED FATHER, represented by Worcester lawyer Carole T. Orland, points to recent court decisions in California and Michigan holding surrogacy contracts similar to his as valid and enforceable.
"Of course, the rationale of those cases may be followed by a panel of this court or the Supreme Judicial Court. But, that outcome is a possibility and not a probability," Flannery wrote.
FORM RELATIONSHIP
He went on to say, however, that to establish standing to bring his paternity action and seek custody, THE INTENDED FATHER may need to form "a substantial relationship with the child by means of custody" while the appeal is pending. Under Massachusetts law, if a child is born to a married woman, her husband is presumed to be the father. For a biological father to claim paternity, he must prove the establishment of a substantial relationship with the child.
"Here, only the father stands to suffer irreparable harm, namely the inability to establish paternity. If the contract is determined to be unenforceable, his paternity claim will be his only remaining avenue. Consequently, I conclude that the balance of hardship here when viewed in light of the legal merits favors the father, "Flannery wrote.
Ricci held a closed-door hearing in the case yesterday in WORCESTER Probate and Family Court. During a break, Orlando and Ricci declined to comment on the case, citing a court imposed gag order on the parties and their lawyers. Court records in the case have been impounded.
Copyright 1997 - Tango! Telegram & Gazette Online
August 1997
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