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.
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.
Section 4B seems to concern the status of a child born to a fertile mother whose husband, presumably infertile, consented to her artificial insemination with the sperm of another man so that the couple could have a child biologically related to the mother.View Full Point of Law