This is Part Two in a two-part series of columns on this case. Part One appeared yesterday, January 19, on this site and can be found here. – Ed.
As I discussed in Part One of this series, couples who want to utilize the services of a surrogate to carry a child for them often face legal obstacles, or at least legal uncertainty.
Much of the media coverage of surrogacy focuses upon those agreements that have involved celebrities, or those that have resulted in lawsuits. For instance, the surrogacy arrangement used by Sarah Jessica Parker and Matthew Broderick ended up in the news last week not because of any disagreement with the surrogate, but because two police chiefs pled guilty in relation to a theft of items from the surrogate's home in Ohio. Moreover, a recent story in The New York Times profiled a case in Michigan, where surrogacy is illegal, in which a gestational carrier was able to get a court order to retrieve twins from their intended parents after learning that the intended mother had not disclosed her treatment for a mental illness.
Despite the perception to the contrary, however, the vast majority of surrogacy arrangements are carried out without a hitch. But what happens when the arrangement fails? Then the question "Who is a parent?" takes central stage.
It turns out that there is no easy answer to that question when multiple adults – sometimes as many as five – each contribute in some meaningful way to bringing a child into the world. But the terrain is even more treacherous in states that have condemned surrogacy by statute or court ruling, as the ruling in a recent New Jersey case, A.G.R. v. D.R.H., reveals.
The Facts in A.G.R. v. D.R.H.
D.R. and S.H. are a gay male couple who legally married in California before the state's brief authorization of gay marriage was repealed by the voters through Proposition 8. (Edward Stein and I discuss the gay-marriage developments in California in a previous column. Despite Proposition 8, interim marriages like this one remain valid.) They are also registered domestic partners under New Jersey law.
The two men wanted to become parents, preferably to a child with whom one of them shared a genetic link. A.G.R., a woman who is D.R.'s sister, agreed to serve as a surrogate for the couple. She was implanted with embryos that had been conceived using S.H.'s sperm and eggs from an anonymous donor. In October, 2006, she gave birth to twin girls.
Prior to the transfer of embryos, the three adults entered into a written agreement – entitled "Contract between a Genetic Father, and Intended Father, and a Gestational Carrier" – setting forth the surrogacy arrangement. A.G.R. also signed three other documents, in which she waived her right to obtain legal advice, consented to the surrogacy, and consented to the adoption of the twins by D.R. Despite the relative formality of the agreement, it was not clear to the trial court whether or not the intended fathers had compensated the carrier for her role as surrogate.
After the twins were born, A.G.R., who lived on property owned by her brother, D.R., visited with them periodically for the first few months. However, that visitation stopped, and A.G.R. eventually filed suit to establish her parental rights. (She is represented by the same lawyer who represented the surrogate in the original, famous New Jersey surrogacy case Baby M., which I discussed at length in Part One of this series.)
Pursuant to court orders that were issued the following year, A.G.R. began having substantial "parenting" time with the twins.
The Trial Court's Ruling: Baby M. Redux
The core issue in this case is the same as the core issue raised by Baby M.: Is the contract for surrogacy enforceable? If the answer is yes, then D.R. and S.H. are the legal parents. If the answer is no, then S.H. and the surrogate are the legal parents.
The trial judge concluded that, under New Jersey law, the contract "is void and serves as no basis for termination of parental rights of the plaintiff [A.G.R.]. . . ." The court ruled, in effect, that the intended father who provided sperm, S.H., is the legal father and the gestational carrier, A.G.R., is the legal mother. The other intended father – D.R., the brother of the surrogate – is left with no parental rights.
Does Baby M. compel this result? Not necessarily. One key difference in this case is that the surrogate is not genetically related to the twins she carried. (The eggs were provided by an anonymous donor who, under standard parentage law, has no parental rights.) There may also be a difference with respect to compensation (which was present in the Baby M.. case), but the court in this case never made a finding about whether the case involved paid or voluntary surrogacy.
Yet despite these possible differences, the court in A.G.R. concluded that Baby M. applies with equal force to a gestational surrogacy arrangement. It also concluded that surrogacy arrangements are equally invalid whether they are paid or unpaid. To reach these conclusions, the court examined the Baby M. ruling and found that the same concerns that motivated the Baby M. court were also implicated in the present case.
The Baby M. court had three primary concerns that led it to invalidate surrogacy in New Jersey: (1) Surrogacy contracts are inconsistent with several provisions of New Jersey's law of adoption and parentage, including those that allow the irrevocable surrender of parental rights only after birth of a child, and do not allow termination by contract; (2) Payment for surrogacy is in conflict with the criminal laws against baby-selling; and (3) Surrogacy can have a potentially adverse impact on all parties involved, including the child.
Are these same concerns present when the surrogate is not also the genetic mother of the child (or children) at issue? Addressing this point, the judge in A.G.R. cited a quote from the New Jersey Supreme Court in Baby M.: "The surrogacy contract is based on principles that are directly contrary to the objectives of our laws. It guarantees the separation of a child from it's [sic] mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and her maternal fitness." The judge then queried: "Would it really make any difference if the word ‘gestational' was substituted for the word ‘surrogacy' in the above quotation? I think not."
The trial judge explained that, in his view, the Baby M. ruling was not based on the genetic connection between the surrogate and the child. Even without such a tie, he concluded, a surrogacy arrangement still conflicts with the state's adoption and parentage laws by providing for pre-birth, irrevocable consent to adoption. Likewise, he concluded, the arrangement still conflicts with the public policy of New Jersey.
In differentiating New Jersey's approach from California's – the highest court of that state upheld a gestational surrogacy arrangement in 1993 in Johnson v. Calvert – the trial judge claimed that while the California court "took the position that it is disrespectful toward women to not allow them to enter into agreements of this nature . . . New Jersey law takes a clearly different position that agreements of this nature have a ‘potential for devastation' to women."
Time to Revisit Baby M.? How the Practice of Surrogacy Has Evolved Since the Decision Was Handed Down
Although surrogacy remains controversial, it has become much more common since Baby M. was decided. There is no hard data on the exact number of surrogacies that have occurred, but the American Society for Reproductive Medicine estimates that there have been as many as 600 surrogate births per year since 2003. Most of these seem to involve compensation for the surrogate – in the neighborhood of $20,000 – in addition to fees paid to brokers, lawyers, and medical providers. Studies of the women who serve as surrogates have found that they generally have positive feelings about the experience afterwards.
However, though surrogacy is much more common and more socially accepted, it still is often undertaken against an uncertain legal backdrop. In nearly thirty states, there is no statute or judicial ruling that addresses the legality of surrogacy. In those states, any given surrogate arrangement could be the one that ends up in a lawsuit that forces a court ruling on the legality of surrogacy generally in that state.
In states that expressly permit surrogacy, the arrangements are obviously more secure, although the parties must be careful to comply with all the procedural and substantive requirements that state law sets forth. And even in those states, many aspects of a standard surrogacy contract are likely to be unenforceable, such as agreements about how particular medical complications-- relating to the surrogate's or embryo's or fetus's health -- will be handled. But at least a written agreement, even if not enforceable to the letter, will force the parties to consider difficult issues up front and hopefully avoid later disagreements. Good lawyering can help make these arrangements legally secure.
That leaves us with states like New Jersey, in which surrogacy has been expressly held illegal. Would-be parents who rely on surrogacy contracts in such a state do so at their peril. Although D.R. and S.H. made plausible arguments to distinguish their case from Baby M. – and although they may still win on appeal – their intended parenthood was blocked by a foreseeable and formidable legal obstacle.
But should Baby M. still carry the day? More than twenty years later, with tremendous advances in reproductive technology (including the ability to conceive children after the death of their biological parents), dramatic increases in the number of same-sex couples having and raising children, and the ever-widening variety of family forms, the ruling itself seems dated.
Would the New Jersey Supreme Court have ruled the same way if Baby M. had not been genetically related to Mary Beth Whitehead? Maybe not. The court's language in that case is laden with assumptions about the prenatal bond between mother and child and the "devastation" to women who irrevocably consent to give up their babies. The opinion is couched in terms of "mother" and "child". But is a gestational surrogate truly the "mother" of the child she carries – even if she has carried the child with full knowledge that it is not in any way genetically hers? Do women who relinquish a child have a similar experience regardless of whether they are genetically related to the child?
These seem to be open theoretical and empirical questions that are worthy of serious consideration by the New Jersey Supreme Court, or by the state's legislature.
As is often the case with family law, social change and science have clearly outpaced the law in this context. Reasonable minds may differ on how to answer the basic legal questions surrounding surrogacy, but individuals who wish to utilize surrogacy to become parents deserve renewed attention to the issue, so that they may have certainty as to whether the child they are joyfully expecting will be legally their own.
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