TASC Judicial Alert
RE: Decision of Supreme Judicial Court for the Commonwealth of Massachusetts in the case of
R.R., Appellant v. M.H.
By Mark A. Johnson, PC
TASC has been informed that the Supreme Judicial Court for the Commonwealth of Massachusetts in the case of R.R., Appellant v. M.H., Appellee, has ruled in favor of an artificial insemination (traditional) surrogate, who sought to repudiate a surrogacy agreement. While TASC has not had an opportunity to review the decision, it apparently holds:1. that surrogacy contracts involving artificial insemination (traditional) surrogates are unenforceable in the Commonwealth of Massachusetts;
2. that the court will make a determination in an artificial insemination case within four (4) days of birth as to the parentage of the child, and the court will be guided by the best interests of the child in rendering its decision; and
3. that the ruling may not apply to gestational surrogacy and egg donation.
While TASC does not impugn the rationale or reasoning of the Supreme Judicial Court for the Commonwealth of Massachusetts, which may have felt constrained to apply existing law drawing upon genetic/adoption paradigms, TASC is nonetheless philosophically opposed to limiting reproductive options to the extent that they entail artificial insemination (traditional) surrogacy. Whether reproductive law within a particular state is established through legislative enactment or through judicial decision, TASC advocates the responsible use and availability of assisted reproductive technology (A.R.T.), and does not favor arbitrarily limiting reproductive options. TASC does not believe that "one size fits all," and that differing situations and sensibilities can lead to the utilization of differing options.
TASC is committed to assisting those who have not won life's fertility lottery. Infertility is a form of disability and, at a time when society overwhelmingly champions the conquering of disabilities, TASC sees no reason to exclude infertility from the manifest progress of human kind.
Again, while TASC and its staff have not yet had an opportunity to review the decision, assuming the above-listed factors to be correct, TASC is opposed to the differential treatment of artificial insemination (traditional) surrogacy for the following reasons:
1. If gestational surrogacy continues to be a viable option in Massachusetts, but artificial insemination (traditional) surrogacy suffers from the infirmity of possible repudiation after birth, the net effect may well be to price assisted reproductive technology options beyond the reach of many of the citizens of the Commonwealth of Massachusetts. Artificial insemination (traditional) surrogacy is "low tech" in that (beyond responsible procedures such as testing for infectious disease), the procedure is actually little more elaborate than a standard artificial insemination procedure. Medical costs are decidedly lower than in the different forms of in vitro fertilization and embryo transfer; the likelihood of success (assuming a fertile surrogate) is generally greater; and there is decidedly less "wear and tear" on both the egg provider and the surrogate in terms of forgone pharmaceutical protocols and additional invasive surgical procedures.
Medical costs associated with egg retrieval, in vitro fertilization, and embryo transfer run in the range of $15,000 to $20,000 per reproductive cycle, and pregnancy is often not attained in the initial attempt. Ultimate success rates are generally lower with embryo transfer and gestational surrogacy than is the case with artificial insemination (traditional) surrogacy.
2. While gestational surrogacy is certainly an appropriate procedure for those intended parents whose sperm and egg are medically suitable for the procedure (and who desire and choose that particular procedure), artificial insemination (traditional) surrogacy is an available option for an intended mother who is born without functioning ovaries or whose eggs are not viable for reproduction. An artificial insemination (traditional) surrogate may be an individual who views herself as an egg donor who also chooses to carry the child. Many such artificial insemination (traditional) surrogates view such a donated egg as one which would be lost during a traditional menstrual cycle, and hence a child born to an artificial insemination (traditional) surrogate may, in certain appropriate cases, create a comparable lessened emotional bond between the expected child and the surrogate as occurs with a male sperm donor toward a child produced from his donated semen.
3. Artificial insemination (traditional) surrogacy is the oldest and most time-tested surrogacy option. In fact, two artificial insemination (traditional) surrogacy arrangements were documented in the Old Testament. Sara, wife of Abraham, was infertile, and enlisted her maid, Hagar, to bear Abraham's child. Genesis, Chapter 16. Isaac and his barren wife, Rachel, relied upon Rachel's servant, Bilbah, to bear Isaac's child. Genesis, Chapter 30.
Why (through rendering the ultimate disposition of the child so uncertain) proscribe the utilization of a reproductive option which was available a number of millennia before the birth of Christ?
4. "Biology" or "genetics" is no longer necessarily "destiny." With the panoply of assisted reproductive technology (A.R.T.) techniques now available, and with the certainty that additional methods will develop and be perfected in the future, the traditional arbiters of parental rights are outmoded in the ART context.
In the past, maternal rights were seldom an issue. Paternal rights were generally decided on the basis of strict genetics (the actual genetic father of the child was obligated for paternal responsibilities and rights, certainly in the marriage context, and increasingly in the out of wedlock context).
Variations to this arrangement were generally handled through an adoption paradigm, where (generally a court) would determine parental fitness and the best interests of the child in parent/child arrangements not strictly limited to genetic imperative.
The problem with applying the adoption schema to third party assisted reproductive technology (A.R.T.) arrangements is that it does not square with the expectations of the involved parties. In the traditional adoption context, the birth mother and the genetic father are responsible for upkeep and rearing of the child during its minority, unless relieved of that responsibility by a court through substitution of adoptive parents. The adoptive parents, by choice, proceed to adopt a child after its birth. If adoptive parents do not come forward to serve in this capacity, the genetic parents retain responsibility, for whatever reason--be it a child born with birth defects or if there is simply an unavailability of an adoptive parent or parents.
However, in arranged surrogacies (be it artificial insemination (traditional), gestational, or donor arrangements), the involved parties seek to create life by design, rather than by accident or wavering interest as is present with the genetic parents in the adoption context. To permit the involved parties to change their minds during the course of a surrogacy arrangement is inherently unfair and inequitable.
How fair is it to a surrogate if, through no fault of the involved parties or the medical practitioners, the child is born birth defective and the intended parties choose to repudiate their agreement and leave the child with the surrogate? Why leave enforcement to an after-the-fact determination by a judge, who has considerable discretion?
How fair is it to the intended parents (be they genetic or not) to allow a surrogate to repudiate a surrogacy arrangement and retain the child--in terms of possible child support obligations to a child who will not be treated exclusively as the intended parents' child, or in terms of the pecuniary and emotional expense of allowing the surrogate to retain the child?
TASC agrees with the position of Richard A. Epstein, one of the preeminent legal scholars in the country, who at the University of Chicago School of Law has been one of the founding fathers of law and economics analysis. In Epstein's "Surrogacy: The Case for Full Contractual Enforcement," 81 Va. L.Rev. 2305, 2339 (1995), Professor Epstein advocates enforcement of surrogacy contracts "come hell or high water." While society is often reticent to enforce contracts of a highly personal and emotional nature (such as surrogacy agreements), Epstein believes that is precisely why such arrangements should be afforded the full breadth of contractual enforcement afforded by law.
The advantage to such an approach is that once "the legal regime is unmistakenly clear, any woman with doubts about her physiological willingness to part with her child will steer away from it." The "wait-and-see" option (as occurred in the R.R. v. M.H. case), might create second thoughts by surrogates who otherwise would not second guess themselves. Professor Epstein notes that the wait-and-see approach works in adoption cases, where if the birth mother changes her mind, she keeps her child and the adoptive parents, though certainly disappointed, are out of the picture. Yet with surrogacy, one or more of the intended parents is often the genetic parent, and they cannot simply walk away and start anew. The failure of a surrogacy contract does not spell the end of a relationship as the genetic parents may be "on the hook" for child support. Professor Epstein notes the traditional defenses to any contractual arrangement are available in a surrogacy context, and if one of the parties overreaches and if the agreement is not mutual and even-handed, then there is redress to the injured party under time-honored contractual tenets.
Finally, in the A.R.T. context, genetic ties are woefully insufficient to determine parentage. A case may arise, (as witnessed in the case of John A.B. v. Luanne, presently pending in the Court of Appeals of the State of California for the Fourth Appellate District, no. G0022157/G0022147), where a child may be deemed to be "parentless." In that case, a donated embryo was transferred into the uterus of a surrogate, and the intended parents had no genetic link to the child to be born, nor obviously, did the surrogate. As the donated embryo was from anonymous sources (obtained through an agency), when the intended father left the marriage one month prior to the birth of the child and repudiated the surrogacy agreement, the trial court, rightfully or wrongfully, deemed the child born to be parentless.
Theoretically in such arrangements, a child might possibly have two of six parents -- the genetic father, the genetic mother, the intended father, the intended mother, the surrogate, and the surrogate's husband (state law often presumes that a man, married to a woman either at the time of conception or time of birth, is the father of the child).
As a consequence, TASC advocates, as the only workable and fair method of such conflict resolution, the enforcement of the parties' intentions when they entered into the third party assisted reproductive technology (A.R.T.) or surrogacy arrangement. With the medical advances now extant, and the probable advances in the future (query: what if gene splicing or a similar procedure were utilized so that genetic material were introduced from another party or even another species in an effort to vitiate some genetic condition or abnormality? -- Is the source of the donated gene also a "parent?"), no other method of resolution is fair, equitable or predictable. Parties undertaking such ventures must be able to guide their actions through assessment of reasonably predictable end results.
For these reasons, TASC respectfully differs with what it understands to be the result in the Massachusetts ruling.
January 1998
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