Massachusetts Courtroom of Appeals Guidelines: Surrogacy Battle Is A Dramatic Mess, However Not Surrogacy
On July 22, 2021, the Massachusetts Court of Appeals ruled on Keanu’s guardianship. It was billed as a surrogacy case, but it didn’t really end up being one.
They know a case is particularly dramatic when the court’s opinion spends multiple pages quoting directly from the Facebook messages between the parties. Note to Readers: Don’t forget that all of your Facebook, IG and TikTok messages could one day be discoverable!
‘Who wants to bring out a baby for my fiancé and me?’
This was the message the “Intended Mother” posted on Facebook that started the epic story. Surprisingly, the random message she posted received a response that someone was actually interested. The defendant, known in the court opinion as the “biological mother”, attended the third grade with the fiancé of the mother of choice, who was the court “Ms. R. “
In a message the birth mother wrote, “Hey, … if you were ready and didn’t step back, I’m pretty sure I could do it. … I don’t want any money or anything. If you’re serious, if you really want a baby and you don’t want to do it any other way, then I would have a baby and adopt you. “
After a few more discussions between the intended mother and the birth mother regarding the further course of action, the intended mother announced that she wanted to be present at all appointments, and the birth mother announced that she did not want any contact with the child after the birth. The birth mother also wrote: “I have read our messages to my friend [boyfriend] also and he agrees to all of this. “
Has anyone spoken to a lawyer?
Shockingly, no legal agreement was made for anyone. At least one lawyer was consulted, but the news showed that the parties did not entirely agree with what the lawyer said. And it doesn’t sound like the lawyer’s advice was followed.
In a conversation the birth mother wrote: “Idc [I don’t care] what the lawyer says. If he’s okay, that might be a problem or us [whatever]. As if I’m having a baby for this couple’s end to the story … “
Wish mother: “Yes, exactly! As I hope they don’t pull checks home and do such things as adoption agencies, all of this is private and I hope it stays that way with dcf [the Department of Children and Families] not in my life lol. “
Annoying lawyers. Anyway, I’ll go ahead and spoil it. DCF ended up in her life.
After everyone decided to ignore the legal advice received, the birth mother began to become pregnant with her boyfriend and kept the wish mother informed of the progress and successful pregnancy. What could go wrong?
That’s not how it is done.
I should note that this is not the case with actual surrogacy as conception occurs. Most surrogacy in the United States is “gestational surrogacy,” in which a surrogate mother undergoes an embryo transfer procedure, in which an embryo is not genetically related to her transfer to her uterus. Even with “traditional surrogacy” (also known as “genetic surrogacy”) this is not done. There, the surrogate mother is also the egg donor, but conception usually takes place through insemination – most often with the sperm of the father of choice. I have never heard of “surrogacy” where the surrogate mother’s boyfriend has sex with her in order to father a child for someone else. This is not called surrogacy.
Fast forward. After a smooth pregnancy with close involvement of the desired mother, all those involved were present for the biological mother. The hospital released the baby to the birth mother, but immediately after leaving the hospital, the birth mother handed the baby over to the desired mother and Ms. R. However, only a few days after the child was brought home, Ms. R. and the desired mother broke off and Ms. R left the picture.
The day after the birth, the mother of choice applied for guardianship. The parties went to court a month after the birth, and a decree was issued appointing the desired mother as permanent guardian. So it all ends well, right? Not quite. More drama is imminent.
A few months after birth, a typo resulted in the child being added to the birth mother’s MassHealth insurance account and one of the birth mother’s older own children being removed. “This upset the birth mother very much, and she sent the dream mother a Facebook message telling her to” adopt “the child immediately or” give it back “. [nervous emoji] Apparently, as the court found in its opinion, the birth mother did not care which option was chosen.
Another drama arose when the birth parents worried about the upbringing of the desired mother – annoyed that the desired mother could take the baby to a nail salon and that the desired mother occasionally had a roommate look after the child.
Four and a half months after the baby was born, the birth parents requested that the intended mother end guardianship. And while the wish mother’s original social media post didn’t look good, the birth mother looks like the bad guy at this point, with some extreme Facebook posts talking junk about the intended mother. Then, about nine months after the baby was born, a brick was thrown through a window of the mother-to-be’s house with a note, “[H]e is mine. “” The judge drew the reasonable conclusion, based in part on the biological father’s giggles in response to questions about his aggressive behavior towards the wish mother that the biological father was the culprit. “
Back to the legal page. While the appeals court began its position on the complaint that this “terribly unfortunate case underscores the need for legislation that sets out comprehensive rules on surrogacy and the legality and requirements for surrogacy agreements and contracts”. The court eventually determined that this agreement was not a surrogacy agreement under state law.
The court found that the birth parents’ decision to “get the child back was just as capricious as their original decision to have it and give it away.” Abolish the parental rights of the birth parents and allow adoption by the mother of choice in the best interests of the child.
A warning to all future parents.
This is not the way to go. The judge notes that despite the final result, this is not the way to become parents. This regulation led “predictably to years of uncertainty for the biological mother, the biological father, the mother of choice and, tragically, for the child”.
“The procedure used by the parties in this case was inadequate to the gravity of … the birth of a child. As a final note, we caution anyone considering a similar informal surrogacy arrangement that we did not find enforceable. “
I asked Catherine Tucker, a surrogacy lawyer from Massachusetts, for her thoughts on the case. She said she was surprised the court had asked the state legislature to provide guidance in such situations. “Surrogacy should not and should not consider a situation in which a woman has sex with her partner in order to get pregnant.” She noted that there are indeed legislative proposals in the state to improve the descent code and provide more protection for families. But that “this case would be just as legally chaotic under the proposed legislation in Massachusetts.”
For the sake of the children (and your legal security as a parent), please do not do any more in the future.
Ellen Trachman is the executive attorney for Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I want to put a baby inside you. You can reach them at firstname.lastname@example.org.