Reproductive Law

Johnson v. Calvert (1993) 5 Cal.4th 84: “She who intended to bring about the birth of a child that she intends to raise as her own is the natural mother.”

When Good Intentions Go Bad, An Intended Parent’s Worst Nightmare

Popular media seems to focus on reproductive cases which go off the rails and create controversy. It seems the the majority of them are DIY, do it yourself, arrangements. I was brought into one such case which illustrates some of the problems facing intended parents who enter ART relationships without competent representation.

I received a call that a gestational carrier was giving birth. The “gestational carrier” contracted to become pregnant through assisted reproductive technology where my caller’s eggs, mixed with sperm in vitro, were permitted to fertilize and the resulting preembryo was transferred to the carrier’s uterus. This carrier was giving birth to a child genetically related to my caller. I agreed to represent the caller and obtain a birth certificate in her name as mother.

The referenced call was followed up with a second just minutes later. I was advised that the carrier decided to keep the baby. My call to hospital risk management revealed that this particular hospital never facilitated a gestational surrogacy before. Further, they chose to not recognize the surrogacy agreement and to escort the carrier from the hospital with my client’s baby.

I called the hospital’s attorney and requested his client place a hold on the baby. Four days later, we began a legal exercise in contractual and statutory interpretation. The baby was ordered into protective custody at the hospital, genetic testing ordered and a trial was set to determine the intention of the parties to the gestational surrogacy contract.

I believe this was a case of first impression in Florida. Clearly, I would be vilified if part or parts of the Florida statutes were overturned through my efforts.

Prehearing, I learned the following: First, the agreement was obtained from a California surrogacy website without any attorney oversight. Second, my client signed the surrogacy agreement for both she and her husband. Third, my client’s husband allegedly admitted to the carrier that he did not intend his wife to participate in the surrogacy.

In her attempt to keep the child, the gestational carrier raised several arguments. First, that the contract was void as the intended father’s signature was forged. Second, that the intended mother breached the contract for her failure to pay. Third, that if there was only one intended parent, the Department of Vital Statistics would not issue a birth certificate under the Florida gestational surrogacy statutes.

Addressing the void contract claim, I argued that there were no criminal charges of forgery. More to the point, even if the contract was void, the underlying intentions would still apply to the conduct of the parties.

In the Matter of John Doe, Settlor, 2005 NYSlipOp 25025, the Court was asked to provide trust benefits to post-death surrogacy twins. New York does not recognize surrogate parenting agreements. However, the NY Court noted that it was the rights of the twins born from the agreement that were under consideration, not the validity of that agreement.

Following the ideas set out in Doe, I argued that the proper determination was the right of a child to be with her genetic parents not the validity of the agreement. As the carrier admitted she wanted to give the child up for adoption and as the Intended Father affirmed his role as a party to the agreement, the judge found for the Intended Parents on that count.

The carrier next argued that as the intended parents failed to make compensation payments to her, the gestational carrier agreement was breached for which the remedy was to award her the child.

In Johnson v. Calvert, 5 Cal.4th 84(1993), a gestational surrogate threatened to not turn the baby over to the intended parents when they failed to pay the promised compensation. It was undisputed that there were two potential sources of maternal rights: genetic consanguinity and delivery. The California court concluded that when the two sources of establishing a mother-child relationship do not coincide with one woman, “she who intended to bring about the birth of a child that she intends to raise as her own is the natural mother.”

In our case, the gestational carrier agreement and testimony showed a clear intention that the pre-embryos were not donated to the carrier. Further, the intended mother never relinquished her intent to raise the child as her own. The Court found for the intended parents on that count.

The carrier’s final argument was that the child’s parentage had to be addressed as an adoption because the intended father was not a party to the agreement. The reasoning offered was that the Florida Gestational Surrogacy Statutes are framed in context of “commissioning couple” not commissioning parent, therefore the child’s disposition could not be governed by the statutes.

In Buzzanca v. Buzzanca, 61 Cal.App.4th 1410(1998), an intended father attempted to disclaim paternity in a gestational surrogacy. The trial court determined that the intended parents were not the infant’s legal parents and the child could be adopted out. The Appeals Court noted that delegating parental responsibility through financial support obligations made the establishment of legal parenthood clear public policy. The trial court’s so-called “adoption default” model was determined to be inconsistent with public policy. Thus, the Court concluded, the intended father could not escape his legal relationship to the child.

Relying on that case, our Judge asked if it made any sense to judicially create a class of children who were parentless and thus wards of the State. After all, he continued, children are born to single parents daily and Vital Statistics issues birth certificates to each and every one of them. The Judge finished by stating that Vital Statistics would not be permitted to reject its administrative responsibilities merely because this child was born through surrogacy.

Based upon the evidence and authorities presented, the Court ordered a birth certificate be issued, listing my clients as the natural parents.

This case study illustrates some of the problems that face intended parents who enter ART relationships without competent representation. In particular, I point out a reasonable course of conduct for any Intended Parent.

First, a gestational surrogacy agreement needs be drafted, proofed and administered by an attorney who has expertise in the area.

Second, all signatures need be witnessed and notarized to provide the attorneys, the court and all parties notice that everyone is at the table voluntarily.

Third, all parties need to be represented by independent attorneys to provide the appropriate ethical distance between the parties and secure assurances that they understand their respective promises and legal rights.

Fourth, the intended parent’s attorney needs to meet with the risk manager and or nurse administrator of the obstetric floor to ascertain the hospital’s understanding of the legal side of surrogacy and how they will administer the birth process. At minimum, the attorney needs to assure the Hospital that this is not an adoption.

Fifth, it is inevitable that the relationship between intended parent and carrier will wax and wane. I believe it paramount that financial considerations never enter the relationship and to minimize such confounders by removing them to a trust account with an independent trustee.