In the case of R.R. v. M.H., 426 Mass. 501 (1998), the Supreme Judicial Court of Massachusetts considered whether a written surrogacy agreement could be enforceable as a legal contract.


The biological father of the child was married to a woman who was unable to conceive children. In April 1996, the couple responded to a newspaper advertisement by a not-for-profit agency that helped infertile couples find women who are willing to act as surrogate mothers. They entered into a contract with this agency.


In the Spring of 1996, a married woman with two children contacted the agency to become a surrogate mother. She stated that her family was complete and she wanted to help others less fortunate have children. Her decision to become a surrogate was also motivated by a desire to earn money to use for her children's education. She submitted an application with the agency and was evaluated by a psychologist to determine her suitability as a surrogate. The psychologist determined that she was solid, thoughtful, well grounded, happy to be a surrogate, and would have no problem giving the child to its father. Her husband spoke to the psychologist on the telephone and advised him that he supported his wife's decision.


In November 1996, the man and the surrogate mother entered into a surrogacy agreement. According to the agreement, she would be inseminated by the sperm of the natural father. Upon the birth of the child, the father would have full legal parental rights, and would be permitted to take the child home from the hospital to live with him and his wife. The agreement specifically stated that the surrogate mother would not be terminating her parental rights; however, it also stated that if she attempted to obtain custody of the child, she would forfeit her rights under the agreement and would be obliged to reimburse the father for all fees and expenses paid to her under it.


The agreement provided for compensation to the mother in the amount of $10,000 "for services rendered in conceiving, carrying, and giving birth to the child." The mother was to receive $500 upon verification of pregnancy, $2,500 at the end of the first trimester, $3,500 at the end of the second trimester, and $3,500 at the time of birth and when delivery of the child occurred. The agreement also stated that no payment was to be made in connection with the consent to surrender the child for adoption.


The mother received and accepted the first two payments under the agreement. At the end of the second trimester, she refused the third payment and decided she wanted to keep her child. The father then commenced a lawsuit against the mother seeking to establish his paternity, alleging breach of contract, and requesting enforcement of his rights under the contract. The judge ordered the mother to give the child to the father, and granted him temporary physical custody. The judge's decision was based upon the best interest of the child and the likelihood that the father would succeed with the contract claim. The issue of enforceability was then argued before the Massachusetts Supreme Judicial Court.


Since Massachusetts does not have any legislation regarding the enforceability of surrogacy agreements, the court first looked at how other jurisdictions address the issue of enforcing surrogacy agreements. A small minority of states has enacted legislation that simply denies the enforcement of these agreements. Some states have exempted these agreements on the grounds that it is illegal to sell a baby. A few states have rendered unpaid surrogacy agreements enforceable. In New Hampshire and Virginia advance judicial approval of such agreements is required; in Arkansas, the child of a surrogate mother is presumed to be the child of the intended parents, and not the child of the surrogate.


The Massachusetts Court also looked at the well known opinion in the Baby M case in New Jersey. The surrogacy agreement in that case provided that the surrogate mother would give up her parental rights and allow the father's wife to adopt the child. That agreement was considered invalid since it directly conflicted with a New Jersey statute prohibiting the payment of money to obtain an adoption.


The court then looked at Massachusetts legislation relating to parental rights and adoption. There is a statute which provides that if a husband consents to his wife's artificial insemination, then he and his wife are considered to be the parents of the child. The court determined that this statute was not intended to apply to the facts of this case. Instead, it was meant to cover situations where a woman is artificially inseminated because her husband is infertile.


According to the Massachusetts adoption statute, the mother of a child must consent to an adoption in writing no sooner than the fourth calendar day after the birth of the child to be adopted. There is also a statute which states that adoptive parents can only pay the birth parents expenses. Any direct payments to the birth parent are expressly prohibited.


The court pointed out that although the surrogacy agreement in this case did not specifically address the issue of adoption, the normal expectation of a surrogacy agreement is that the father's wife will adopt the child. The court also explained that although the agreement stated that payment was attributable for the mother's services in carrying the child, the mother did agree to give up custody of the child. Furthermore, if she attempted to assert her custody rights, she was required to relinquish the money paid to her. Therefore, the agreement did relate to the parental rights of the surrogate mother. Because the court believed that the payment of money under the agreement was being made to influence the mother's custody decision, the agreement as to custody was void. The court raised concern with compensated surrogacy agreements, because finances could be used to pressure a woman into permitting her body to be used and her child to be given away. The court also found that since the mother's purported consent to relinquish custody occurred before the birth of the child, the consent could not be recognized.


In deciding that the surrogacy agreement at issue in the case was unenforceable, the court discussed what types of surrogacy agreements would be given legal effect. The court explained that no compensation may be paid beyond pregnancy-related expenses, and the mother cannot consent to relinquish custody until a suitable time has passed after the child's birth.


The court also outlined the other factors it would consider in determining whether a surrogacy contract is enforceable, which include:


1.whether the mother's husband consented to the agreement;


2.whether the mother is an adult who has had at least one other child;


3.whether the parties involved were evaluated for the soundness of their judgment and the capacity to carry out the agreement;


4.whether the father's wife is capable of having children; and


5.whether all parties consulted with legal counsel.


The court noted that many surrogate agreements are being made and carried out without disagreements. Physicians who counsel patients about surrogate relationships should advise them that such arrangements may not be legally enforceable in Massachusetts. The enactment of legislation would seem to be the most viable resolution to providing for the validity of such arrangements.


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Surrogate Parents

by Attorney Frank E. Reardon

May 1998