Surrogacy Back in the News: Courts and Legislatures

Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.

Iowa Recognizes Compensated Surrogacy Arrangements

The Iowa Supreme Court recently upheld the legality of gestational surrogacy agreements, including compensated arrangements, ruling that they are not against public policy in that state. While that legal principle will be welcome for both professionals and participants involved in surrogacy arrangements in Iowa, the case also raised several troubling factual issues that should serve as cautions to medical, legal, and mental health professionals. The following information is taken from the published court decision.

The case involved two married couples, each with infertility problems. The intended mother, CM, was “nearing age fifty”, and she and her husband had six children from their prior marriages. They needed both an egg donor and gestational carrier. The gestational carrier, TB, was seeking to cover the costs of her own future IVF with her current husband following a life threatening tubal pregnancy and subsequent tubal ligation. She had four children from a prior marriage, her husband had none.

The couples met through Craigslist. Their 2015 agreement was drafted by an attorney for the intended parents in which the gestational carrier and her husband “elected to waive” legal counsel; the couples agreed to transfer two embryos; and, upon the birth of a live child, the intended parents agreed to pay the cost of the gestational carrier’s IVF procedure up to the amount of $13,000 (or pay $2,000 in the event of a stillbirth or miscarriage). The couples used an Illinois IVF clinic, which required there be a legal agreement, but the opinion is silent on whether it required evidence of separate legal representation for the parties, and presumably, it did not. The court did not recite any language from the agreement, or otherwise, as to whether the intended parents offered to pay the gestational carrier’s legal fees, a standard recommendation or requirement in some professional guidelines. There also is no evidence as to whether the couples had a mental health consult or counseling.

The couples’ relationship began to break down within weeks after the transfer, and before confirmation of a twin pregnancy. The intended parents objected to TB’s husband videotaping the first ultrasound and posting info on social media (a relatively new development that many surrogacy agreements now address).  Before the end of the first month, text messages exchanged over scheduling doctor’s appointments included CM’s statements that, “…this is our journey not anyone else’s...[w]e are in charge; we hired you so just let us be parents and enjoy this ok!” After confirmation of the twin pregnancy, the court quoted more texts reflecting the relationship “remained rocky” and included, “…the doctors told me [a carrier] should be saying yes ma’am. Whatever you guys want to do. But you can’t stand not being in charge, and you have some mental disorder for sure, but yet you blame everything on us…we have never did u wrong. This is a nightmare.” TB’s reply was, “You’re crazy” and CM replied, “Oh really, that’s what everyone says about u.” There is no mention of mental health intervention being available or employed, another aspect written into many agreements. At this point TB attempted to cut off all direct communication, and retained an attorney.

In May, through her attorney, TB requested more money, $30,000, to cover the costs of a different IVF clinic since she did not want to use the same clinic the intended parents were using, in part because the clinic wanted her to use her insurance and because CM had told TB the employees there thought she was crazy. (A $30,000 amount is much closer to standard fees for singleton surrogacies.) The intended parents refused. The couples were apparently of different races, as the court notes that in August, CM, sent Facebook messages to TB’s sister that included “racial slurs,” and there was an email exchange to TB and her attorney in which CM used “the N word,” which convinced TB CM was racist and TB decided she would not turn over the babies to CM.

The twins were born prematurely on August 31st, and one died eight days later. The intended parents, unaware of the births or death (and subsequent cremation) of one of the twins, went to court in late October, seeking a declaratory judgement and a preliminary injunction to take custody of the twins. Baby H, the remaining twin, was physically placed with them at age 10 weeks, and three months of litigation followed, including appointment of a GAL (guardian ad litem) who considered but rejected shared custody, multiple motions and cross motions by the parties and the hospital, and DNA testing. The trial court ultimately ruled in favor of the intended, biological father’s right to both legal and physical custody (under Iowa law the intended, non-genetic mother, needs to undertake a step-parent adoption to establish her legal maternity).

In her appeal, TB was represented by Howard Cassidy, an attorney who has opposed all forms of surrogacy since first representing Mary Beth Whitehead in the Baby M case in New Jersey in 1986 and Melissa Cook, the gestational carrier who carried triplets for a single man in 2016. A steadfast opponent of all forms of surrogacy, he took the position that a surrogate should be the presumed legal mother, that enforceable surrogacy agreements “embody deviant societal pressures,” and that surrogacy exploits a woman by using her much like a “breeding animal.”  The court reviewed surrogacy law from a number of other states, and was unpersuaded, ruling instead: 

“We hold this gestational surrogacy contract is legally enforceable in favor of the intended, biological father against a surrogate mother and her husband who are not the child's genetic parents. The intended parents would not have entrusted their embryos to the surrogate mother, and this child would not have been born, without their reliance on the surrogate's contractual commitment. A contrary holding invalidating surrogacy contracts would deprive infertile couples of the opportunity to raise their own biological children and would limit the personal autonomy of women willing to serve as surrogates to carry and deliver a baby to be raised by other loving parents.”

The court added that, “[w]e emphasize that TB’s legal attack is on surrogacy agreements in general. We do not foreclose the possibility that a surrogacy agreement in a particular case could be subject to specific contract defenses, such as fraud, duress or unconscionability.”

Although the arrangement involved a number of practices inconsistent with professional guidelines and practices, the court’s language suggests it was not presented by TB’s lawyer with such arguments based on specific troubling facts or aspects of the case. From a medical perspective, an agreement to transfer two embryos rather than one is contrary to ASRM’s 2012 elective single embryo transfer guidelines. From a psychosocial perspective, mental health consults for all potential participants are routine in most programs. From a legal perspective, entering into a surrogacy agreement without independent legal counsel for the gestational carrier is inconsistent with professional guidelines or practices endorsed not only by professional legal organizations but by medical professional organizations like ASRM and ACOG, as well.  

Predicating compensation on a live birth is incompatible with legal standards that payments are for the inconvenience and efforts arising from the pregnancy, and not buying or selling a baby, something which is illegal in every state. The $13,000 agreed amount of the carrier’s compensation was a third or less than prevailing fees for singletons, with no provision for additional compensation for carrying multiples.  It is unlikely an attorney representing a gestational carrier would have agreed to these provisions. There was also no mention of the IVF program requesting or requiring evidence that the parties had had separate legal counsel in reaching a legal agreement (typically required and provided in the form of a “clearance letter”), or provisions for mental health psychoeducation or counseling before any agreement or during the pregnancy.

Ultimately, the court’s legal ruling that the biological, intended father was entitled to both physical and legal custody and that compensated surrogacy agreements are permitted in Iowa, is consistent with accepted and emerging surrogacy law in a growing number of states. However, the attorneys and the court appear to have missed an opportunity to address legal arguments over the multiple unusual and troubling issues surrounding this arrangement, or the valuable roles various professionals can play to safeguard the surrogacy process for participants to help others avoid the difficulties and heartache these families experienced.

PM and CM v. TB and DB, IA Sup.Ct. (2/16/18);

Washington Becomes First State to Pass a Version of 2017 Uniform Parentage Act, including Guidance and Protections for Surrogacy Participants

In March 2018, Washington became the first state to pass a version of the 2017 Uniform Parentage Act (UPA 2017), adopting much of that new model law. As previously reported in Legally Speaking (Jan. 2018), the updated model UPA 2017 was released by NCCUSL, the national Uniform Law Commission, last July. Its purposes included making the Act gender neutral, revamping old and little followed surrogacy provisions, and updating other family building and ART related issues, including de facto parentage and addressing the rights of donor conceived children to genetic information. (This author participated in the 2017 drafting efforts as an official observer on behalf of SART).  The new Washington law accepts most of those revamped provisions, including recognizing compensated surrogacy and providing a specific process for such surrogacy arrangements, including required independent legal representation throughout a surrogacy arrangement. (The surrogate and the intended parent or parents must have independent legal representation throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement, and each counsel must be identified in the surrogacy agreement.) Those safeguards could help avoid issues such as in the Iowa surrogacy case reported above.

As the NCCUSL committee’s chairman and reporter noted in guest authoring Legally Speaking (Jan. 2018), “in addition to making the provisions gender neutral, UPA (2017) also updates the surrogacy provisions to reflect developments in that area, making them more consistent with current surrogacy practice and recently adopted statutes in several states. The surrogacy provisions in UPA (2002) followed an adoption-based model, …UPA (2017) jettisons this approach for gestational surrogacy agreements, and generally streamlines the process with regard to such agreements. Among other things, if the parties comply with the statutory requirements, the intended parents of a child born through gestational surrogacy are treated as legal parents of the resulting child by operation of law, without the need for a court order or judgment. UPA (2017) also permits genetic (also referred to as “traditional”) surrogacy agreements, but it imposes additional requirements on these agreements. Among other things, judicial validation is generally required for genetic surrogacy agreements, and a genetic surrogate maintains the right to withdraw her consent up until 72 hours after the child’s birth.

The Washington law will be effective as of January 1, 2019.  Similar versions of the UPA 2017 are pending in other states, with Vermont appearing poised to be the second state to adopt a version of the new model law. [Washington state law]; [Full text UPA 2017]

Couple Sues Irvine CA Clinic Claiming Frozen Embryos Lost or Destroyed Prior to Shipping

A California couple has filed suit against their former IVF clinic for negligence and breach of contract after their embryos were not found upon arrival at their new clinic. The couple allege the first clinic, Coastal Fertility Center in Irvine, California, failed to properly place a straw with their remaining two embryos into a tank that was transported to their new clinic in Newport Beach. According to media reports, the couple’s lawsuit alleges, “no fewer than three different lab technicians studied the solution to ensure that there was no mistake… b]ut, shockingly, not only was there no sign of the embryos, but there was not even any sign of any embryo debris to suggest that the embryos had ever been in the straw in the first place.”  Coastal Fertility reportedly issued a statement denying the allegations, stating the embryos had been transferred to another laboratory; “[t]hat laboratory was then responsible for the storing and thawing of those embryos. We have no control over those embryos once they leave our laboratory.”

The case raises an increasingly familiar issue when genetic material is shipped, or handled by multiple individuals or entities, known as “chain of custody.” In such instances, plaintiffs must establish who or what along the “chain” handling or transporting the tissue, was or were responsible for the damage or loss sustained. In such case, this can be difficult to establish. The case is set for a jury trial in August 2018.

Bergman v. Coastal Fertility (Orange County Sup. Ct. CA; filed 2/14/18);

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

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