This month the Iowa Supreme Court upheld a gestational surrogacy. It also recognized the parental rights of an intended genetic parent as the biological parent of the child born to a gestational surrogate.
The Facts –
The intended parents are a married couple unable to conceive their own child. They signed a contract with a surrogate mother and her husband. The surrogate and her husband agreed to have the surrogate mother impregnated with embryos fertilized with the intended-father’s sperm and the ova (eggs) of an anonymous donor.
The surrogate became pregnant. Then, the parties relationship deteriorated. The surrogate refused to honor the agreement. She delivered twins thirteen weeks early. The surrogate and her husband were identified as the parents on the birth certificates. One twin became ill and died eight days later. The surrogate did not inform the intended parents. The surrogate and her husband unilaterally arranged for the deceased baby’s cremation.
The intended parents sued to enforce the contract and gain custody of the surviving child. The trial court concluded that the intended father, as the biological father, has the superior constitutional right to raise the baby. The court awarded sole legal custody to the intended father pending final resolution of the case. The court concluded that the Surrogacy Agreement was enforceable as a matter of law.
The trial court ruled the contract is enforceable, terminated the presumptive parental rights of the surrogate and her husband, established paternity in the biological father, and awarded him permanent legal and physical custody. The surrogate and her husband appealed to the Iowa Supreme Court.
The Decision –
Surrogacy Laws In Other States.
Like North Carolina and most other states, Iowa does not have any statutory law on surrogacy. The court looked to the laws in other states for guidance. The states which do have statutes specifically addressing surrogacy generally impose greater restrictions on traditional surrogacies. Most can be grouped into one of three categories. Some states prohibit all forms of surrogacy contacts. Other states prohibit only certain types of surrogacy contracts—typically those involving a traditional surrogacy. A third group of states, allow both traditional and gestational surrogacy contracts. The states which allow surrogacy contracts, subject them to regulation and certain limitations.
Gestational Surrogacy Contracts Are Valid.
After reviewing the law in other states, the Supreme Court of Iowa concluded:
“Banning gestational surrogacy contracts would deprive infertile couples of perhaps the only way to raise their own biological children and would limit the contractual rights of willing surrogates. We join the better-reasoned cases from other jurisdictions rejecting arguments that gestational surrogacy contracts are void against public policy.”
Intent Determines Parentage.
The Supreme Court of Iowa enforced the language in the contract and followed the precedents in other states which allow gestational surrogacy contracts. The court also concluded that the contractual payment is for gestational services, not for the sale of a baby. The court also concluded that the intended father as the genetic parent was also the “biological parent” of the child.
Lessons Learned –
Screening is important. Rely upon established fertility clinics to arrange a match. Look for programs that require psychological screening as a condition of participating. Here, the intended mother placed an advertisement on Craigslist seeking a woman willing to act as a surrogate. Look for surrogates who have completed their own families. Here, the surrogate and her husband did not have children together. They wanted to have biological children. They needed funds for fertility treatments. These pressures contributed to the deterioration of the parties’ relationship.
Have separate legal counsel. The surrogate and her husband had the opportunity to have separate legal representation but declined. Make it a requirement. Most clinics do.
Have a Contract.
Have a contract. Fortunately, the parties had a contract. Without a contract, the result may have been different. The contract made the parties intentions clear. The surrogate was to carry and deliver a child for the intended parents. The surrogate and her husband disclaimed any parental rights to the child and acknowledged that the intended parents were to be the legal parents of the child. The court enforced the contract according to its terms.
Again, have a contract. It is not just a checklist item. It is important. The purpose is to anticipate as many potential issues as possible. It allows the parties to reach a meeting of the minds about important issues in advance. The contract can be amended as necessary to address new issues, but at least everyone starts with the same expectations. Here, the parties’ relationship deteriorated when they disagreed over the payment of medical expenses, compensation for the surrogate, and when the surrogate’s husband videotaped the ultrasound and posted the video on social media. These are common issues that should be addressed in a well drafted surrogacy agreement.