R.R. v. M.H. & another

Brief Fact Summary. Plaintiffs, M.H. & another, entered into a surrogacy agreement with Defendant, R.R. Defendant changed her mind prior to giving birth and expressed a desire to keep the child.

Synopsis of Rule of Law. Surrogacy agreements that compensate the birth mother directly, provide compensation in excess of expenses, and obtain the birth mother’s consent to a custody agreement prior to birth violate public policy as evidenced in the adoption statutes and are unenforceable.

Facts. Plaintiff father and Defendant mother are the biological parents of a child. Plaintiffs entered into a surrogacy contract with Defendant. Defendant met Plaintiffs through a corporation, which provides surrogate services for infertile couples. Both parties went through the corporation’s evaluation process including submitting to evaluation by a psychologist. The parties both signed a surrogate parenting agreement. Defendant consulted an attorney prior to signing the agreement. The agreement provided compensation for Defendant for conceiving, carrying and giving birth. The agreement did not require Defendant to terminate her parental rights to the child. However, if Defendant sought custody or visitation of the child, Defendant would have to reimburse Plaintiffs for the compensation provided. Plaintiffs made the payments as required. Prior to the birth of the child, Defendant changed her mind and wanted to keep the child. Defendant returned the last payment, but did not reimburs
e Plaintiffs for the previous payments.

Issue. Is the surrogacy agreement enforceable?

Held. No. The surrogacy agreement is not enforceable.
The Court looks to adoption statutes for guidance, but note that adoption statutes do not directly apply, as the present case does not involve termination of parental rights and adoption.
Adoptive parents are permitted to pay the expenses of the birth, but may not make payment directly to the birth mother.
The Court finds that the agreement in the present case involves compensation for more not just expenses, but also for relinquishing custody. Because the adoption statutes prohibit payment to the birth mother or payment beyond expenses, the Court holds that an agreement to relinquish custody in exchange for compensation should not be considered in determining child custody.
Adoption statutes also provides that the birth mother’s consent to a custody agreement may not be made prior to a reasonable time after the birth. The Court holds that likewise in this case, Defendant’s consent to a custody agreement prior to the birth is ineffective.
Because the surrogacy agreement is inconsistent with the adoption statutes by providing compensation beyond expenses and obtaining Defendant’s consent to custody prior to birth, the Court holds that the agreement violates public policy.
The Court briefly dismisses Defendant’s argument that the agreement was unconscionable under the circumstance.

Discussion. In the present case, the Court holds that the surrogacy agreement violates public policy as evidenced by the adoption statu