Email: TASC@surrogacy.com Disclaimer
Surrogacy in Massachusetts
Author: John J. Weltman, Attorney at Law
Please visit our sponsor at: http://www.CircleSurrogacy.com.
The recent decision by the Supreme Judicial Court in the moot case of R.R. v. M.H. should not negatively impact any couple from Massachusetts or anyone considering working with a surrogate parenting agency in Massachusetts. As The Boston Globe proclaimed in its headline "Surrogacy Law Enacted With Protections," it authorized surrogacy to proceed in Massachusetts, rather than illegitimized it. It encouraged the Legislature to enact a statute governing surrogacy, citing approval to the New Hampshire and Virginia statutes, both of which permit surrogacy under certain circumstances. Thus, the court by no means rejected surrogacy as a means for infertile couples to have children, it simply sought to create guidelines under which those arrangements might be given effect.
The decision simply makes clear what every other court who has addressed the traditional surrogacy arrangement has already made clear, (i.e. the Baby M case in New Jersey and the Moschetta case in California), namely that a traditional surrogacy arrangement is unenforceable until the surrogate mother actually signs a surrender form and relinquishes the child to the intended parents. As this can happen in Massachusetts within four (4) days of the birth of the child, there is not a long waiting period after the birth for insecurity.
Nevertheless, many people will get caught up on the court's ruling that the surrogacy arrangement in question was unenforceable, and that women in Massachusetts have four (4) days after the birth of the child in which to decide whether or not to relinquish the child. But this is no different than the law was before the decision came down, nor is it different than the case law in any other state that has not specifically legislated in favor of surrogacy (such as the legislature did in Arkansas.) Thus, there is very little new here.
What is new in this decision is the court's clear distinguishing of surrogacy from private adoptions (which are illegal in Massachusetts). "[T]here is nothing inherently unlawful about traditional surrogacy arrangements," the court boldly held. The court then went on to say that, under the right circumstances, such agreements might be enforceable. Recognizing that most couples would prefer not to wait until four days after the child was born to know if their agreement was enforceable, the court encouraged the legislature to provide a means for judges to authorize a surrogacy agreement to go forward provided certain criteria were met. The criteria the court felt were important included (1) that the surrogate be an adult who had had at least one successful pregnancy, (2) that her husband give his informed consent to the surrogacy agreement in advance, (3) that the mother, her husband and the intended parents be evaluated in advance for the soundness of their judgment and for their capacity to carry out the agreement, and (4) that the intended parents be suitable persons to assume custody of the child and all parties have the advice of counsel. The court added the factor that "the father's wife be incapable of bearing a child without endangering her heath." However, this factor should not be narrowly interpreted. The court readily recognized the acceptability of the use of surrogacy to create non-traditional (i.e. lesbian) families or to create a traditional family where the father's wife is simply unable to carry her egg to term (i.e. gestational surrogacy).
The court had two principal reasons for finding the agreement unenforceable. First, the agreement used money to coerce a less socio-economically advantaged surrogate to give up a child, much like baby selling. It permitted "pregnancy-related expenses" to be paid, but did not define this term. Some lawyers seemed to fear, as The Boston Globe indicated, that any attempt to hide extra compensation for the surrogate would be deemed unlawful by the court. But the courts own language belies this interpretation. It acknowledges that "an intended father" could still "incur substantial pregnancy related expenses." (emphasis added). It also proposed, as a form of legislation to be adopted by the Massachusetts Legislature, the Uniform Status of Children of Assisted Conception Act, that expressly "allows (for) the payment of compensation." The court's focus here seems to be on the timing and purpose of compensation, not on the amount. As long as payments are made for pregnancy-related expenses prior to the surrender, and there is no financial compensation held over the surrogate's head to coerce her to release the child, it is this author's position, that that may still be acceptable to the courts of Massachusetts.
The second concern of the court is that the parties not make a binding "best-interests-of-the-child-determination by private agreement." The court noted that even agreements entered into by married couples as to the custody of the children in the event of a divorce was still subject to "a judicial determination of custody based on the best interest of the child."
Thus the court did nothing more here than to apply the same standards that exist in divorce and adoption proceedings to surrogacy. In so doing, it took surrogacy out of the darkness of possible illegality and made it firmly legal. It gave it a whole construct of centuries old law to which it could now turn for guidance. And while this may not seem the best result to all intended parents, it may provide a construct for protecting everyone involved.
It is critical to note that, in allowing the surrogate mother to have four (4) days in which to change her mind, as she has with an adoption, the court did not intend, in any fashion, to state that the mother therefore gets to keep the child. In fact, unlike an adoption, where neither adoptive parent is biologically connected to the child, in traditional surrogacy, one of the adoptive parents (the father) is. Thus, a best interests of the child analysis will be done to assess who has the right to maintain custody of the child.
In the first semi-ruling on this subject in Massachusetts, Judge Ricci of the Worcester Family and Probate Court gave her opinion to the parties that she was likely to rule that the best interest of the child was to remain with its intended parents and not with the surrogate mother. Thus, the first Massachusetts court to speak on the issue of what is in the best interest of the child has already indicated its conclusion that the best interest of the child lie with the intended parents. As a result, the parties entered into a settlement agreement giving the Rascoes sole custody of the child with Michelle Hoaglund having only limited visitation rights and the obligation to pay some child support.
Comparing this decision to the decision in the Baby M case in New Jersey and the Moschetta case in California indicates that it is far superior to both. In the Baby M decision, the court could see of no situation in which traditional surrogacy agreements would be acceptable. The Massachusetts court in R.R. v. M.H. recognized surrogacy as an alternative means of having a child for an infertile couple. The lower California court in Moschetta actually split custody between the surrogate mother and the intended father, who lived in substantially different socio-economic worlds and who barely knew each other and certainly ceased liking each other long before the litigation was through. In this case, the parties reached a settlement (which may help with their future relations), where the intended parents obtained full custody of the child and the surrogate mother has visitation rights.
Although some people may disagree with me, I do not believe that having some regular contact between a child and its biological mother is necessarily such a horrible thing. I have a wonderful relationship with the surrogate who bore my two sons and I wish she were not so far away so that she might be a greater part of their lives. I believe that the issues a child who is adopted may feel of abandonment, etc. due to his or her inability to connect with his or her biological parent until he or she is of legal age is made far superior by the surrogacy arrangement that permits and, I hope, encourages contact between all the parties throughout the child's life to normalize that relationship. While I certainly don't believe that such contact should be required, I think it is to most parents' advantage to seek it out, not fear it and make it normal and comfortable for the child.
Of equal importance in this decision is the court's clear distinguishing of gestational (and, quite possibly, egg donor) surrogacy cases. The court clearly seems to feel that both gestational and egg donor surrogacy are fine and may continue. No court to my knowledge has yet determined that this type of surrogacy arrangement is invalid, nor has any court permitted a "carrier" to maintain custody of a child that is not biologically related to her.
The solution may be for persons in Massachusetts interested in surrogacy to do some of the things that California couples, or couples turning to California agencies for surrogacy arrangements have done, namely to consider an egg donor other than the surrogate mother and an IVF procedure to avoid any issue with custody being asserted by the surrogate mother.
Alternatively, persons in Massachusetts can react to this decision the way persons in California reacted to the Moschetta decision, namely, to keep going with traditional surrogacy arrangements in which they believe. Certainly practitioners in Massachusetts would be well counseled to follow the teachings of the case and screen not only the surrogate and her husband but the potential parents as well, making sure that if the surrogate is married, or has a fiancee or live in boyfriend, that he provides his informed consent to the surrogacy arrangement. In addition, couples should try to select surrogates who have had children before, and make sure in every instance that a surrogate has an attorney.
Alternative means of getting around this decision for couples who are still wary is not only to apply the law of a different state to the surrogacy agreement, but also to have the parties acknowledge that jurisdiction over any issues that arise shall be in that pro-surrogacy state. For example, if the contract were to expressly state that Arkansas law applies and that the parties consent to jurisdiction in Arkansas, any couple concerned by a surrogate's behavior or told by a surrogate that she was planning to keep the child could file a suit in Arkansas, where the statutes expressly support surrogacy and get a ruling from that court, which the courts in Massachusetts may have to respect.
Another alternative, is for couples to seek surrogates outside of Massachusetts. Finding surrogates from states that either expressly permit surrogacy, or from states where the courts have not yet ruled on surrogacy (such as Massachusetts' neighboring states of Rhode Island, Vermont and Connecticut) are still very viable options for residents of Massachusetts seeking to find surrogacy arrangements nearby.
One who would have to wonder why couples would travel all the way from Massachusetts to work with California based agencies when agencies exist in their own state, where the ultimate resolution of the Rascoe case, seems far more favorable than the physical custody resolution of the Moschetta case in California.
If a couple wishes to work with a surrogate in Massachusetts, they can be comfortable in knowing that nothing in this decision prohibits surrogacy in Massachusetts. It simply warns couples that if a surrogate changes her mind, they may have already paid a surrogate substantial sums and then have to do battle over what is in the "best interest of the child." This does not mean, as has already been evidenced by Judge Ricci's indication of her ruling in R.R. v. M.H., that the surrogate will gain custody. To the contrary, to my knowledge, no reported decision has yet given sole custody to a surrogate. Even California's Moschetta case only split custody, whereas both the Massachusetts and New Jersey cases ended with sole custody in the hands of the intended parents and the surrogates having only visitation rights.
What this all means is that if a couple wishes to have a child through surrogacy in Massachusetts, they must be thoroughly convinced that their surrogate has been adequately screened and that her intentions are good. I am only aware of a dozen or so of the many thousands of surrogate births arranged through surrogate parenting agencies all over the country that have ended in court room challenges and only a handful have resulted in high court decisions. While none of these have been favorable to traditional surrogacy (whereas all have been favorable to gestational surrogacy), one must look at the track record overall. If there are even a dozen cases where a surrogate has been awarded visitation of a child out of approximately 6000 surrogate births (or about 2 tenths of 1 percent), then that is far better than the averages that exist for private adoptions, at risk adoptions, IVF procedures or most of the other options available to infertile couples.
Certainly trying to account for the factors the court considered important will be a crucial task for surrogate professionals in Massachusetts to make in the future, and making couples aware of the risks that exist (as any qualified surrogate professional would have done last week as well as this week) will be crucial too. However, by no means does R.R. v. M.H. mean the end of surrogacy in Massachusetts.
February 1998
Copyright 1998. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
The information contained in the website may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of The American Surrogacy Center, Inc. If you would like to include this information on your website, you may link to the page directly on our site.
Guest commentary and representations by others do not necessarily reflect the opinions of the principals of TASC, and should furthermore be independently verified.
Email: TASC@surrogacy.com Disclaimer