Surrogacy Agreements: The Latest Case Law and Drafting Tools

Assisted Reproductive Technology and the Law

According to a 2014 New York Times article, there is no federal surrogacy law, and state laws vary wildly. Seventeen (17) states have laws permitting surrogacy, twenty-one (21) states have no law or published cases regarding surrogacy, in five (5) states surrogacy contracts are void and unenforceable, and in Washington D.C. surrogacy contracts carry criminal penalties.1 The results of such wide-ranging laws from state to state can be catastrophic.

In one story of the effect of state laws on surrogacy contracts, experienced surrogate mother Crystal Kelley executed a surrogacy contract with intended parents in the state of Connecticut. An embryo, developed by joining the intended mother's egg with the intended father's sperm, was placed in Kelley's uterus. Five months into the pregnancy, an ultrasound revealed the baby suffered from cleft lip, brain cyst and heart defects. The surrogacy contract required the surrogate to terminate the pregnancy at the request of the intended parents. For obvious public policy and moral reasons, this provision cannot be enforceable, however, it could be a basis for the intended parents to sue the surrogate for damages.

The surrogate (Kelley) offered her services based on her financial situation and in expectation of financial gain. Certainly she could not afford to pay damages if the intended parents sought them. In an attempt to resolve the matter, the intended parents offered to pay Kelley $10,000.00 if she would terminate the pregnancy. Kelley refused, and fled to Michigan, where surrogacy contracts are not enforced.

Had Kelley remained in Connecticut, the law in that state treats the biological parents as the legal parents, and Kelley would have been required to turn the child over to the intended parents at birth. After her refusal to terminate the pregnancy, the intended parents notified Kelley that they would take custody of the child after the birth as planned, but would then surrender the baby to the state under Connecticut's safe haven law. Kelley did not agree that this would be the best option for the child, but she would have no choice if she remained in Connecticut.

Unlike the law in Connecticut, Michigan law says the surrogate, even when biologically unrelated, is the legal parent. Michigan does not recognize surrogacy contracts, and the intended parents would have no legal rights in that state. Ultimately, the parties involved were able to come to agreement without legal action. The child was born and adopted by a family in Michigan, with experience caring for special needs children. The intended parents maintain contact with the child.2

Some states expressly prohibit surrogacy, while others are either unclear about the practice, or have certain restrictions. The following list illustrates the wide variance of surrogacy laws throughout the states:3

Alabama: The courts are generally favorable. However, statutory language exempts surrogacy from adoption laws and prohibitions on baby selling. In 1996, the Alabama Court of Civil Appeals gave implicit recognition to a surrogacy arrangement when it awarded custody of a child in a divorce case to the wife who had no biological relationship to the child.

Alaska: There is no law governing surrogacy. The courts generally are favorable. In 1989, the Alaska Supreme Court equated surrogacy with adoption.

Arizona: An Arizona statute forbids "surrogate parent contracts" whether they be traditional or gestational. It provides that in a surrogacy situation the surrogate is the legal mother of the child or children and, if she is married, her husband is the father. However, the Arizona Court of Appeals, a court of intermediate jurisdiction, ruled in 1994, that the parentage presumption was rebuttable as to the intended mother.

Arkansas: Arkansas law is highly favorable to surrogacy. There is a statute declaring surrogacy agreements valid. The statute details several types of parentage situations and clearly establishes rights in each situation. More than once, the Arkansas Supreme Court has ruled in favor of intended parents.

California: California law, as established in rulings of the California Supreme Court, is very favorable to surrogacy. In the notable cases of Calvert v. Johnson (1993) and Buzzanca v. Buzzanca (1998), California first established and then reinforced its position that intent governs in the determination of parentage in gestational surrogacy situations.

Colorado: There is no law governing surrogacy but the courts are generally favorable.

Connecticut: There is no legal objection to surrogacy arrangements. With regard to pre-birth orders, the Connecticut Supreme Court has ruled that the State Office of Vital Statistics of the Connecticut Department of Health must comply with such orders even when the intended parents have no biological relationship to the child(ren).

Delaware: A 2013 law permits surrogacy (gestational) and details the process. Parentage filings are pre-birth with the final decree issued post-birth

District of Columbia: The District of Columbia forbids surrogacy. Those who violate the statute may be fined up to $10,000, given a prison sentence of up to one year, or both.

Florida: Florida statutes permit both traditional and gestational surrogacy. Traditional surrogacy arrangements, known as "pre-planned adoption agreements," are linked to the state adoption statute. Gestational surrogacy agreements are permitted only between legally married couples.

Georgia: There is no law governing surrogacy but the courts are generally favorable.

Hawaii: There is no law governing surrogacy but the courts are generally favorable.

Idaho: There is no law governing surrogacy but the courts are generally favorable.

Illinois: Illinois has a statute highly favorable to gestational surrogacy which governs the process from contract formation to the issuance of birth certificates. It applies to single parents who have furnished their own gametes or heterosexual couples where at least one person has furnished his or her own gametes.

Indiana: Under Indiana law, surrogacy contracts are "void and unenforceable." Nevertheless, a few judges will grant pre-birth orders.

Iowa: The courts are generally favorable. Although Iowa has no surrogacy statute, the Iowa Code exempts a "surrogate mother arrangement" from criminal provisions regarding the sale or purchase of human beings.

Kansas: There is no law governing surrogacy but two opinions of the Attorney General argued that surrogacy contracts are void as against public policy.

Kentucky: There is no law governing surrogacy. The Kentucky Supreme Court has indicated that surrogacy contracts are voidable by a party to the arrangement.

Louisiana: A Louisiana statute declares traditional surrogacy agreements to be void, unenforceable, and contrary to public policy. The statute does not address gestational surrogacy. However, many courts are not gestational surrogacy friendly.

Maine: There is no law governing surrogacy but the courts are generally favorable.

Maryland: There is no law governing surrogacy but the courts are generally favorable. However, an Attorney General's opinion from 2000 argued that compensated surrogacy contracts are illegal but did not oppose post-birth adoptions indicating that the judge would have to consider the best interests of the child(ren).

Massachusetts: There is no law governing surrogacy but the courts are generally favorable.

Michigan: Michigan law forbids surrogacy. Individuals who enter into surrogacy arrangements may be fined up to $50,000 and imprisoned for up to five years.

Minnesota: There is no law governing surrogacy but the courts are generally favorable.

Mississippi: There is no law governing surrogacy but the courts are generally favorable.

Missouri: There is no law governing surrogacy but the courts are generally favorable.

Montana: There is no law governing surrogacy but the courts are generally favorable.

Nebraska: Under Nebraska law "[a] surrogate parenthood contract entered into shall be void and unenforceable." This provision applies to compensated surrogacy agreements in which the surrogate "is compensated for bearing a child of a man who is not her husband."

Nevada: Gestational surrogacy agreements are permitted only between legally married (heterosexual) couples.

New Hampshire: New Hampshire law permits married heterosexual couples to become intended parents in traditional or gestational surrogacy arrangements where one partner has furnished a gamete. The statute does not appear to sanction gestational surrogacy arrangements in which a donor egg was used.

New Jersey: New Jersey forbids traditional surrogacy but is friendly toward gestational surrogacy, remunerated or compassionate. Although the Attorney General opposes the granting of pre-birth orders in gestational surrogacy cases involving an egg donor, the courts frequently issue such orders anyway.

New Mexico: There is no law governing surrogacy but the courts are generally favorable.

New York: New York forbids surrogacy. Anyone who enters into a surrogacy arrangement may be fined up to $10,000. Those who facilitate surrogacy arrangements, e.g. lawyers and agencies, are fined in the first instance and, for a second offense, are guilty of a felony.

North Carolina: There is no law governing surrogacy but the courts are generally favorable.

North Dakota: North Dakota law forbids traditional surrogacy but permits gestational surrogacy.

Ohio: The Ohio courts are deeply divided over the status of surrogacy. Accordingly, some judges are loath to grant pre-birth orders.

Oklahoma: Oklahoma has no law on surrogacy. An Attorney-General's opinion from 1983 that pre-dated the rise of gestational surrogacy declared that compensated surrogacy contracts violated the state's statutory prohibition on child trafficking.

Oregon: The courts are generally surrogacy friendly and they will issue declarations of paternity.

Pennsylvania: Pennsylvania has no law governing surrogacy. Some more conservative judges will not grant pre-birth orders. The Pennsylvania adoption statute provides for the post-birth adoption of a child born through surrogacy in the county of the intended parents' domicile.

Rhode Island: There is no law governing surrogacy but the courts are generally favorable.

South Carolina: There is no law governing surrogacy but the courts are generally favorable.

South Dakota: There is no law governing surrogacy but the courts are generally favorable.

Tennessee: Tennessee has a statute that "expressly authorize(s) the surrogate birth process." It defines surrogacy as comprising two situations: 1) gestational surrogacy where both intended parents furnish the gametes and 2) gestational surrogacy where the intended father furnishes the sperm and the surrogate relinquishes the child to him and his wife.

Texas: Texas permits surrogacy but has a complicated statute requiring judicial approval of contracts in advance. The provisions are so unwieldy that a group of surrogates petitioned the state legislature to have the law amended or repealed.

Utah: Utah has a statute permitting gestational surrogacy. It forbids traditional surrogacy and also does not allow the surrogate's husband to act as the sperm donor. At least one intended parent must have furnished (a) gamete(s).

Vermont: There is no law governing surrogacy but the courts are generally favorable.

Virginia: Virginia permits surrogacy but has a statute so complicated that the common practice for Virginia births is to file an action post-birth for amendment of the birth certificate.

Washington: Washington statutes permit uncompensated surrogacy arrangements but declare compensated ones void and unenforceable. Those involved in the latter are guilty of a gross misdemeanor.

West Virginia: The courts are generally favorable. A statute prohibiting human trafficking exempts fees and expenses in surrogacy arrangements.

Wisconsin: The courts are generally favorable. A statute governing the collection of vital statistics specifically directs the responsible authorities to place the names of the intended parents on the birth certificate once a court determines parental rights.

Wyoming: There is no law governing surrogacy but the courts are generally favorable.4

As stated above, Illinois has enacted a comprehensive Gestational Surrogacy Act. 5 The statute sets requirements for who can be a gestational surrogate in Illinois. The surrogate cannot be biologically related to the child, must be at least twenty-one (21) years old, and must have given birth at least once prior to the gestational surrogacy. In addition, the surrogate must undergo medical and mental health evaluations, consult with an attorney, and procure health insurance.6 Further, the Illinois law sets out the required terms and provisions for enforcement of a gestational surrogacy agreement in the state. If the statute is followed, it guarantees legal parentage for the intended parents, and protects the surrogate by requiring that the intended parents be financially responsible for the child. Both parties are offered protection by allowing monetary damages for breach of the surrogacy agreement.7

Traditional surrogacy v. Gestational Surrogacy

Traditional surrogacy is the process by which a surrogate mother is inseminated with the intended father (or another's) sperm, and is biologically related to the baby. Traditional surrogacy creates a legal presumption of parentage for the mother in every state. Traditional surrogacy is not recommended unless the parties are related or very close friends. Traditional surrogacy is much riskier than gestational surrogacy, because the surrogate mother has legal rights to the child if she changes her mind. Traditional surrogacy has been criticized by some opponents as, "baby selling." Other critics worry that this practice takes advantage of lower income women by exploiting them for surrogacy services. Certainly, when advising clients about traditional surrogacy, be sure that the clients understand the risk. Even a relative or close friend can have second thoughts when the biological relationship to a child is involved.

Traditional surrogacy is typically achieved via artificial insemination. About 20,000 women undergo artificial insemination each year, and the rate for success (resulting in pregnancy) is about one in seven.8 The intended parents can use the intended father's sperm, or select an anonymous donor. Donors are given a physical exam, genetic testing and complete a medical history. Donors also provide a photograph of themselves and a personal biography, outlining their education and background.9 The Uniform Parentage Act of 1973 stated that, "the donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived." Twelve states adopted this, or very similar language.10

Gestational surrogacy is the process by which a surrogate mother is implanted with an embryo and has no biological relationship to child. The embryo can be any combination of egg and sperm from the intended parents and / or donors. Article 8 of the Uniform Parentage Act of 2002 contains a "gestational agreement."11 The gestational agreement was added as an update, as gestational surrogacy has become more common. The gestational agreement must be validated by a court, similar to an adoption. The Uniform Parentage Act provides the agreement to assist families using gestational surrogacy to make clear their intentions to the legal system.12

Gestational surrogacy is typically achieved via implantation of an embryo, made from donated sperm and eggs. State laws have typically offered less protection to female egg donors from the responsibility of parentage than has been afforded their male, sperm donor counterparts.13 Unlike sperm donation, egg donation is a highly involved and complex process. The donor takes hormones for several months before being sedated and having her eggs extracted.14 The 2002 UPA gamete donation provision provides that "a donor is not a parent of a child conceived by means of assisted reproduction." This later update was more general, as egg donation was more common than in 1973. The comments to this provision state that a child conceived as the result of assisted reproduction is not a parent of the resulting child. The donor cannot sue to establish parental rights or seek visitation. The donor cannot be sued or be required to support the child. Seven states adopted the exact language of the 2002 UPA gamete donation provision and six additional states have statutes with the same effect. These thirteen states provide the same protections from parental rights and responsibilities for both sperm and egg donors.15

Sixteen states have no laws that protect donors - this means, if the donor is not protected from the responsibilities of parentage in these states, they could potentially bring a claim for parentage against the intended parents.16 In the absence of governing statutes, courts will likely determine legal parentage based on the intent of the parties, as evidenced by such factors as: the method of conception, the existence of a sexual relationship between the parties, the anonymity of sperm donation (and by analogy, egg donation), the name of the parent listed on the birth certificate, and the parties' representations to others as to the child's legal parentage.17

Somewhere between 12 % and 20% of couples struggle with infertility.18 It is likely that you will encounter a client interested in pursuing surrogacy. You may encounter disputes over stored genetic material as well, when a couple has broken up and unused sperm or embryos remain. Currently, the stored embryos and sperm are considered property under case law.19 If intended parents divorce while they are in possession of stored genetic material, the recent line of cases will consider the rights of the party who does not want to use the genetic material over the rights of the person who does.20 The courts have been cautious not to force a party into parentage after a breakdown of the relationship. If your clients are in possession of stored genetic material, as a result of a planned surrogacy, you should request copies of the agreements and releases the parties signed at the storage facility. These may or may not have an impact on the ultimate disposition of the genetic property.21 As with cases in states without surrogacy laws, the court will examine the intent of the parties when deciding what to do with the stored genetic material.22

In Litowitz v. Litowitz, a couple had two embryos formed with donor eggs, and the husband's sperm, after a successful birth using a surrogate.23 The couple had the left-over eggs frozen with the intention that they would someday be implanted in the uterus of a surrogate mother, however, the couple subsequently divorced.24The husband wished to place any children born from the embryos up for adoption in a two-parent family outside the state of Washington but the wife appealed from the court's ruling because she wanted to raise any potential children.25 The Washington Supreme Court ruled that the pre-embryos should be thawed out and allowed to expire because the dispute had not been resolved within a five year time-frame prescribed by the Cryopreservation Agreement.26

A Michigan case, Stratford v. Stratford,is also illustrative on this topic. The divorced couple fought over five frozen embryos for years.27 The former wife wanted to have more children, using the embryos, but the former husband did not agree.28 The Court of Appeals reversed stating the following: "We conclude that the order is invalid, for two reasons: (1) the order affects and imposes obligations and responsibilities upon the fertility clinic that was not a party to this appeal or the divorce action; and (2) the order's use of the permissive term 'may' renders the order vague, in the event plaintiff opts not to donate the embryo for adoption by 'another willing couple.'"29 Thus, the status quo of the embryo was to remain in effect until the parties to the divorce reach an accord with the fertility clinic concerning the embryo, or until such time as any contractual issues (implied-in-law, express or otherwise) are decided by a court of competent jurisdiction.30

In Szafranski v. Dunston, an Illinois court dealt with a similar situation in another case involving a couple's frozen embryos.31In that case, the couple was never married and Mr. Szafranski's sperm and Ms. Dunston's eggs were utilized to create "pre-embryos".32 The court determined the best approach for resolving disputes over the disposition of pre-embryos created by one party's sperm and another party's ova is to honor the parties' own mutually expressed intent as set forth in their prior agreements.33 We therefore join those courts that have held that agreements between parties are generally to be presumed valid and binding, and enforced if there is any dispute between them.34

These cases demonstrate the difficult issues that can take place when reproductive technology is utilized. For this reason, it is important that attorneys advise their clients of the legal implications of their decisions beforehand to help ensure they avoid costly legal battles later.

Certainly this is a precarious area of practice, with many uncertainties to consider when advising clients. In states where there are no surrogacy laws, the careful drafting of the surrogacy agreement will certainly help to show the court the intent of the parties, but the results are still uncertain. Clients should be very clear about the potential for a donor to intervene and upset the surrogacy process, challenging the parental rights of the intended parents.

Key Contract Provisions

Section 25 of the Illinois Gestational Surrogacy Act is instructive in what terms and provisions should be included in a gestational surrogacy contract:

(c) A gestational surrogacy contract shall provide for:

(1) the express written agreement of the gestational surrogate to:

(i) undergo pre-embryo transfer and attempt to carry and give birth to the child; and

(ii) surrender custody of the child to the intended parent or parents immediately upon the birth of the child;

(2) if the gestational surrogate is married, the express agreement of her husband to:

(i) undertake the obligations imposed on the gestational surrogate pursuant to the terms of the gestational surrogacy contract;

(ii) surrender custody of the child to the intended parent or parents immediately upon the birth of the child;

(3) the right of the gestational surrogate to utilize the services of a physician of her choosing, after consultation with the intended parents, to provide her care during the pregnancy; and

(4) the express written agreement of the intended parent or parents to:

(i) accept custody of the child immediately upon his or her birth; and

(ii) assume sole responsibility for the support of the child immediately upon his or her birth.

(d) A gestational surrogacy contract shall be presumed enforceable for purposes of State law even though it contains one or more of the following provisions:

(1) the gestational surrogate's agreement to undergo all medical exams, treatments, and fetal monitoring procedures that the physician recommended for the success of the pregnancy;

(2) the gestational surrogate's agreement to abstain from any activities that the intended parent or parents or the physician reasonably believes to be harmful to the pregnancy and future health of the child, including, without limitation, smoking, drinking alcohol, using nonprescribed drugs, using prescription drugs not authorized by a physician aware of the gestational surrogate's pregnancy, exposure to radiation, or any other activities proscribed by a health care provider;

(3) the agreement of the intended parent or parents to pay the gestational surrogate reasonable compensation; and

(4) the agreement of the intended parent or parents to pay for or reimburse the gestational surrogate for reasonable expenses (including, without limitation, medical, legal, or other professional expenses) related to the gestational surrogacy and the gestational surrogacy contract.35

Section 801 of the Uniform Parentage Act also lays out the requirements for a gestational surrogacy agreement:

"(a) A prospective gestational mother, her husband if she is married, a donor or the donors, and the intended parents may enter into a written agreement providing that:

(1) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;

(2) the prospective gestational mother, her husband if she is married, and the donors relinquish all rights and duties as the parents of a child conceived through assisted reproduction; and

(3) the intended parents become the parents of the child.

(b) The man and the woman who are the intended parents must both be parties to the gestational agreement.

(c) A gestational agreement is infra vide for payment of consideration.

(f) A gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or that of the embryos of the fetus."36

Additional contract provisions the parties to a surrogacy agreement may want to consider could include a reference to, "altruistic surrogacy," a surrogacy that does not involve compensation. Certainly, a written surrogacy agreement should include this information if executed in a state that does not allow surrogacy. Certain states will allow altruistic surrogacy when surrogacy for compensation is not allowed.37

A surrogacy agreement must also address future contact, if this is contemplated by the parties, especially in cases of traditional surrogacy where the surrogate mother is a relative or close family friend. Keep in mind, especially when advising a gestational surrogate, that a provision for future contact may not be enforceable. In a state like Illinois, where a gestational surrogate has no legal relationship to the child, a provision for future contact would not be enforceable.38

Sample gestational surrogate contracts may be found online. Most sample contracts provide that the contract may be terminated prior to transplant of the embryo.39 Attorneys may find using these sample contracts helpful, but need to carefully review the sample contracts to make sure the terms and provisions are enforceable in their client's state.

Aside from being well-informed on the necessary terms and provisions in the surrogacy contract, the attorney and parties to the surrogacy agreement must consider what to do in the case of a dispute or breach of the agreement. In Illinois, intended parents who breach gestational surrogacy agreement are still responsible for financial support of the child.40 Additionally, if a birth defect occurs and surrogate mother refuses to abort, intended parents are still responsible for financial support of minor child. 41

The parties need to discuss potential issues (birth defects, safety of the surrogate mother, etc.) before they occur and include in the surrogacy agreement how they plan to deal with these issues and the penalties for breaching the agreement.

Employment Issues in Surrogacy

Surrogacy agreements are more common now than ever, which is evidence by their appearance in the Uniform Parentage Act, state laws and online. However, surrogacy is still considered a unique option for family creation. It is important for attorneys representing both intended parents and surrogate mothers (and their spouses) to be able to advise them on the effects of surrogacy and employment under the Family Medical Leave Act. The intended parents are eligible for up to twelve (12) weeks of unpaid leave, "for the birth of their child," and eligibility extends for up to twelve (12) months after the birth. Surrogate mothers and are also entitled to leave under the FMLA Section 825.120, "for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child".42 Parties to a surrogacy agreement may not be comfortable addressing their entitlement to leave with their employer - advising them of this benefit will help them to take advantage of leave under the FMLA.

Pre-Birth Orders

Pre-birth orders are allowed in Illinois if both parties' attorneys (gestational surrogate and intended parents) certify to the court that the parties have entered into a gestational surrogacy requirement meeting Illinois standards.43 Section 6 of the Illinois Parentage Act of 1984 states:

"(1) A parent-child relationship may be established in the event of gestational surrogacy if all of the following conditions are met prior to the birth of the child:

(A) The gestational surrogate certifies that she is not the biological mother of the child, and that she is carrying the child for the intended parents.

(B) The husband, if any, of the gestational surrogate certifies that he is not the biological father of the child.

(C) The intended mother certifies that she provided or an egg donor donated the egg from which the child being carried by the gestational surrogate was conceived.

(D) The intended father certifies that he provided or a sperm donor donated the sperm from which the child being carried by the gestational surrogate was conceived.

(E) A physician licensed to practice medicine in all its branches in the State of Illinois certifies that the child being carried by the gestational surrogate is the biological child of the intended mother or the intended father or both and that neither the gestational surrogate nor the gestational surrogate's husband, if any, is a biological parent of the child being carried by the gestational surrogate.

(E-5) The attorneys for the intended parents and the gestational surrogate each certifies that the parties entered into a gestational surrogacy contract intended to satisfy the requirements of Section 25 of the Gestational Surrogacy Act with respect to the child.

(F) All certifications shall be in writing and witnessed by 2 competent adults who are not the gestational surrogate, gestational surrogate's husband, if any, intended mother, or intended father. Certifications shall be on forms prescribed by the Illinois Department of Public Health, shall be executed prior to the birth of the child, and shall be placed in the medical records of the gestational surrogate prior to the birth of the child. Copies of all certifications shall be delivered to the Illinois Department of Public Health prior to the birth of the child." 44

In other states that allow surrogacy, the intended parents and gestational surrogate would similarly seek a pre-birth order by presenting the surrogacy agreement to the court and requesting an order stating that the intended parents are the legal parents.45 The process is outlined in Section 8 of the Uniform Parentage Act of 2002 and is similar to the process described under the Illinois law.46 In some jurisdictions, seeking a pre-birth order could alert the court to the parties' intentions and result in criminal penalties. 47

What could go wrong?

In any legal situation involving the birth and parentage of a child, it would be difficult, if not impossible, to create an exhaustive list of everything that could go wrong. A few possibilities have been addressed previously - birth defects, a surrogate mother absconding to a less hostile jurisdiction, and threats of lawsuits. Drafting a thorough and enforceable surrogacy agreement can help to deal with these issues. The most common (and well-known) problem with surrogacy agreements is every intended parent's worst nightmare - the surrogate mother refuses to relinquish the child.

Surrogacy leapt into the national spotlight in the late 1980s, when the case of Baby M was filed, resulting in intense media coverage. In this case, the intended parents, the Sterns, paid Mary Beth Whitehead $10,000.00 to be inseminated with Mr. Stern's sperm, deliver a child, and give up parental rights to the Sterns. After the birth of the child, Whitehead refused to relinquish the child. Whitehead absconded with the child to Florida, but was eventually located. In the first major surrogacy ruling, the Supreme Court of New Jersey ruled that the surrogacy contract was void and unenforceable under its current law. The Court found that since Stern was the biological father, he should be awarded custody and the case was remanded to determine what amount of visitation would be appropriate for Whitehead.48 The case has since been superseded by the passage of New Jersey laws regulating surrogacy contracts.

Enforceability

Since the Baby M decision, multiple state courts have dealt with, "What could go wrong?" scenarios in surrogacy agreements. The results vary widely, as there is no federal law and each state deals with the issue on its own.

In one example, a Tucson immigration attorney executed a gestational surrogacy agreement with a close friend as her gestational surrogate, after cancer treatment made her unable to conceive. The attorney used zygotes she and her ex-husband had frozen shortly before her cancer treatment. The ex-husband had relinquished any rights to the zygotes during the divorce process. The attorney attempted to procure a pre-birth order for parentage during the surrogate's pregnancy, but was denied, as gestational surrogacy agreements are illegal and invalid in Arizona. After birth, she could not sign birth certificate or take the infant home from the hospital. The hospital alerted child services, who became involved in an effort to try to keep the intended mother away from the child. The gestational surrogate had to move in with the intended mother to avoid further action from child services. Ultimately, the attorney was able to complete an adoption of the child.49 This was a difficult way for the intended mother, an attorney herself, to learn the severe repercussions of state law on surrogacy agreements.

In another example, the Wisconsin Supreme Court was left to decide the enforceability of a traditional surrogacy contract, as Wisconsin state law does not address surrogacy. Monica Schissel volunteered on two occasions to act as a traditional surrogate for cancer survivor Marcia Rosecky. The Roseckys accepted Monica's offer and entered into a surrogacy agreement, in which Monica would carry the child and terminate her parental rights at birth. Monica decided during the pregnancy that she would not honor the surrogacy agreement. The Wisconsin Supreme Court viewed the traditional surrogacy agreement (in absence of state law) as a regular contract, and adjudged that it was enforceable with the exception of the provision requiring Monica to terminate her parental rights. The case was remanded for a determination of custody and placement, with the lower court ordered to honor the enforceable provisions as long as they were in the child's best interests.50

In this example, the intended parents were able to win custody of the child. However, the court would not enforce the portion of the surrogacy contract that required the traditional surrogate to terminate her parental rights. As such, Monica could ask the court on remand for visitation with the child. Clearly this outcome is not ideal and very likely came as a shocking result to the intended parents. A knowledgeable attorney should advise clients that traditional surrogacy is not a dependable process regarding securing parental rights. Any court would be loathe to enforce an agreement requiring a biological mother to terminate her parental rights. As seen in the above example, even a close friendship is not enough to deter the emotional and legal connection of mother and child.

An Ohio appellate court (in absence of law directly addressing situation where neither woman involved is genetically related to the child) applied a mix of contract law and parentage law to interpret the breach of a surrogacy agreement, and ultimately adjudged the intended mother as legal parent. The intended mother, S.N., entered into a gestational surrogacy agreement with a surrogate, M.B. Embryos from sperm and egg donors were implanted into the gestational surrogate.51 A set of twins were born as a resulted of the implanted embryos, one of whom unfortunately died from complications of premature birth.52 After the birth, the surrogate breached the agreement and attempted to be adjudicated the parent under Ohio law.53 Ohio law presumes that the birth mother is the legal mother. S.N. successfully rebutted this presumption by presenting the surrogacy agreement to the court.54

International Surrogacy

International surrogacy is seen as an attractive option as it is less costly than using a domestic surrogate. Typically, international surrogates expect far lower fees than their domestic counterparts. India has created "surrogate visa" for intended parents, but excludes same-sex couples.55 However, clients interested in international surrogacy should proceed with caution. Because agencies are unregulated and oftentimes operate in other countries, the potential for fraud is great. Some intended parents have given deposits, only to be ignored or paired with unsuitable surrogates. 56

International surrogacy received negative media attention just this year, when an Australian couple abandoned their child born with Down syndrome and other ailments with a Thai surrogate. Even more shocking, the child was one of a set of twins; the parents took the other child. Thailand did not allow surrogacy, except in cases where the intended parents could prove that they were physically unable to have children. This law was largely ignored for many years, until the "Baby Gamy" case shocked the world. Critics are decrying the exploitation of Thai women and the government has reacted strongly, banning further births by surrogacy. Intended parents with brand new babies are encountering difficulty leaving the country with their children as Thailand reacts to the scandal.57

International surrogacy is a relatively new practice. It is clear from the examples above, the law has been slow to catch up with the practice of domestic surrogacy. In one article arguing to establish guidelines, a cautionary example is related. The article points out the possibility that a couple could contract for surrogacy internationally (Ukraine), spending the funds to travel to the country, undergo the process of finding the surrogate, creating an agreement, and implantation of the embryo. In this example, our childless couple is from Canada. They arrive in Ukraine for the birth of the child, but are unable to have a passport issued from the Canadian government, as the intended parents had no documents to prove parentage and Canadian law does not recognize parentage via surrogacy. Panicked, the couple attempts to adopt the child in Ukraine to obtain a passport. Unfortunately, the Ukraine does recognize parentage via surrogacy, and the country already considers the couple the child's legal parents. As such, they are unable to adopt the child and are left with no way to return to Canada with their child.58

This is only an example, but accurately describes the catastrophic consequences when parents are not advised of the impact of international law on surrogacy agreements. Currently, the only rules to apply to international surrogacy are those adopted under the Hague Convention. However, the Hague Convention fails to address some of the issues unique to surrogacy. The differences are apparent in two areas: first, the Hague Convention deals with adoption. Money is not traditionally exchanged in the adoption process, and the Convention discourages it. However, surrogacy is usually a service performed for payment. Disputes with regard to payment under a surrogacy agreement are not addressed by the Hague Convention.

The second issue where adoption and surrogacy diverge, leaving the Hague Convention useless, is the issue described in the above example of the Canadian couple. This is described as, "statelessness." In a surrogacy contract, the parental rights of the intended parents can be adjudicated prior to the child's birth. When an adopted child is born, the child is a citizen of the country of birth, and that citizenship is transferred to the adoptive country. In a surrogacy situation a child can be born to a mother whose rights have already been terminated. The child does not belong to the birth mother, and she cannot confer citizenship on the child. This leads to agonizing disputes when intended parents attempt to secure documents for the child to return to the intended parents' country.59

Based on the lack of international guidelines for surrogacy and the shortcomings of applying the Hague Convention, clients should be forewarned about the perils of international surrogacy.


1 Tamar Lewis, Surrogates and Couples Face Maze of Laws, State by State, New York Times, Sep. 17, 2014 available at http://www.nytimes.com/2014/09/18/us/surrogates-and-couples-face-a-maze-of-laws-state-by-state.html?_r=0.

2 Elizabeth Cohen, Surrogate offered $10,000 to abort baby, CNN (March 6, 2013, 2:58 PM) http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/.

3 See, U.S. Surrogacy Laws by State, The Surrogacy Experience, available at: http://www.thesurrogacyexperience.com/surrogate-mothers/the-law/u-s-surrogacy-law-by-state/.

4 Id.

5 Gestational Surrogacy Act, 750 ILCS 47/1 et seq.

6 Id.

7 Id.

8 Christina M. Eastman, Statutory Regulation of Legal Parentage in Cases of Artificial Insemination by Donor: A New Frontier of Gender Discrimination, McGeorge Law Review Vol. 41, 371 at 376 (2010) available at http://www.mcgeorge.edu/documents/publications/MLR4107_Eastman_ver_05__FINAL.pdf.

9 Id at 376.

10 Id at 378-79.

11 Mark Hansen, As Surrogacy Becomes More Popular, Legal Problems Proliferate, ABA Journal (March 1, 2011 11:40 AM) http://www.abajournal.com/magazine/article/as_surrogacy_becomes_more_popular_legal_problems_proliferate.

12 Parentage Act Summary, http://www.uniformlaws.org/ActSummary.aspx?title=Parentage%20Act Iast visited March 30, 2015).

13 Christina M. Eastman, Statutory Regulation of Legal Parentage in Cases of Artificial Insemination by Donor: A New Frontier of Gender Discrimination, McGeorge Law Review Vol. 41, 371 at 373 (2010) available at http://www.mcgeorge.edu/documents/publications/MLR4107_Eastman_ver_05__FINAL.pdf.

14 Id at 378.

15 Id at 380.

16 Id at 383.

17 Id at 385.

18 Steven H. Snyder, I'm a Divorce Lawyer, So why should I read about ART?, American Bar Association (2011) available at http://www.americanbar.org/publications/gpsolo_ereport/2012/february_2012/divorce_assisted_reproductive_technology.html.

19 Id.

20 Id.

21 Id.

22 Id.

23 Litowitz v. Litowitz , 48 P.3d 261, 264 (Wash. 2002).

24 Id.

25 Id.

26 Id. at 270-71.

27 Stratford v. Stratford, No. 300925, 2012 WL 516059, at *2 (Mich. Ct. App. Feb. 16, 2012).

28 Id.

29 Id.

30 Id. at *4.

31 Szafranski v. Dunston , 993 N.E.2d 502 (Ill. App. 2013).

32 Id.

33 Id.

34 Id.

35 Gestational Surrogacy Act, 750 ILCS 47/25 (2005).

36 Uniform Parentage Act (2002) available at http://www.uniformlaws.org/shared/docs/parentage/upa_final_2002.pdf.

37 Tamar Lewis, Surrogates and Couples Face Maze of Laws, State by State, New York Times, Sep. 17, 2014 available at http://www.nytimes.com/2014/09/18/us/surrogates-and-couples-face-a-maze-of-laws-state-by-state.html?_r=0.

38 Gestational Surrogacy Act, 750 ILCS 47/15 (2005).

39 Sample GS Contract, All About Surrogacy, http://www.allaboutsurrogacy.com/sample_contracts/GScontract1.htm. See Appendix A.

40 Gestational Surrogacy Act, 750 ILCS 47/30 (2005).

41 Id.

42 The Family and Medical Leave Act of 1993 29 U.S.C. §825.120

43 Gestational Surrogacy Act, 750 ILCS 47/35 (2005).

44 Illinois Parentage Act of 1984 750 ILCS 45/6

45 Parentage Act Summary, http://www.uniformlaws.org/ActSummary.aspx?title=Parentage%20Act Iast visited March 30, 2015).

46 Uniform Parentage Act (2002) available at http://www.uniformlaws.org/shared/docs/parentage/upa_final_2002.pdf.

47 Tamar Lewis, Surrogates and Couples Face Maze of Laws, State by State, New York Times, Sep. 17, 2014 available at http://www.nytimes.com/2014/09/18/us/surrogates-and-couples-face-a-maze-of-laws-state-by-state.html?_r=0.

48 Matter of Baby M., 109 N.J. 396 (N.J. 1988).

49 Maria Ines Taracena, Surrogate Sanctions, How one Tucson mother's dream to have a child turned into a legal nightmare, Tucson Weekly, January 29, 2015 available at http://www.tucsonweekly.com/tucson/surrogate-sanctions/Content?oid=4910825.

50 Rosecky v. Schissel, 833 N.W.2d 634 (Wisc. 2013).

51 S.N. v. M.B., 935 N.E.2d 463 at 464-65 (Ohio App. 2010).

52 Id at 465.

53 Id.

54 Id at 470-73.

55 Nicole Grether and Adam May, Going global for a family: Why international surrogacy is booming, Aljazeera America (May 13, 2014 at 3:00 PM) http://america.aljazeera.com/watch/shows/america-tonight/articles/2014/5/12/going-global-forafamilywhyinternationalsurrogacyisbooming.html.

56 Tamar Lewin, A Surrogacy Agency that Delivered Heartache, The New York Times, July 27, 2014 available at http://www.nytimes.com/2014/07/28/us/surrogacy-agency-planet-hospital-delivered-heartache.html?_r=0.

57 Abby Phillip, A shocking scandal led Thailand to ban surrogacy for hire, The Washington Post (Feb. 20, 2015) available at http://www.washingtonpost.com/blogs/worldviews/wp/2015/02/20/a-shocking-scandal-led-thailand-to-ban-commercial-surrogacy-for-hire/

58 Sarah Mortazavi, It Takes a Village to Make a Child: Creating Guidelines for International Surrogacy, Georgetown Law Journal Vol. 100 (2014) available at http://georgetownlawjournal.org/articles/it-takes-a-village-to-make-a-child-creating-guidelines-for-international-surrogacy/.

59 Id at 2256.

Keywords: Surrogacy, International Surrogacy, Traditional Surrogacy, Gestational Surrogacy, Child Custody