The Organization of Parents Through Surrogacy
P.O. Box 611
Gurnee, IL 60031
COURT HOLDS SURROGACY AGREEMENT UNENFORCEABLE AS AGAINST PUBLIC
By H. Joseph Gitlin, Esq., Woodstock, IL
In January 1998 the Supreme Judicial
Court of Massachusetts ruled that a surrogacy agreement is not
enforceable as a matter of public policy. R.R. v. M.H.,
SJC-07551, filed January 22, 1998.
A written surrogacy agreement was entered into between the
surrogate mother and the biological father. During the sixth
month of pregnancy, and after she received funds from the father
pursuant to the surrogacy agreement, she changed her mind and
decided to keep the child. The father thereupon successfully
brought suit to obtain a preliminary order awarding him
temporary custody of the child. Apparently, the temporary
custody order the trial judge entered was in the nature of an
injunctive order which was based, in part, on the judge's
conclusion that the father was likely to prevail on his
assertion that the surrogacy agreement is enforceable.
The surrogacy agreement provided for payment to the mother of
$10,000 "for services rendered in conceiving, carrying and
giving birth to the child." There were to be installment
payments of $500 on verification of pregnancy, $2,500 at the end
of the third month, $3,500 at the end of six months and $3,500
at the time of birth and when the delivery of the child occurs.
(It is assumed that "delivery" means the delivery of the child
to the father.) The agreement recited that no payment was being
made in connection with the adoption of the child, the
termination of parental rights, or consent to surrender the
child for adoption. The agreement further provided that the
mother's parental rights would not terminate if she permitted
the father to take the child home and that the mother could, at
any time, seek to enforce her parental rights by court order,
but if she did so she would forfeit her rights under the
agreement and be obligated to reimburse the father all the fees
and expenses paid to her under it.
The wife of the father was infertile. The couple was in their
40's. The connection between the surrogate and the intended
parents was made through a for profit corporation that, for a
fee, helps infertile couples find women willing to act as
surrogate mothers. The surrogate mother responded to an ad in
the newspaper. The trial judge found the mother was motivated to
be a surrogate by a desire to be pregnant, to earn money, and to
help an infertile couple. The surrogate mother on two occasions
was advised to seek legal counsel. The surrogate was examined by
psychologists who concluded that the mother was well grounded
and would have no problem giving the child to the father.
The mother was paid the initial $500 in 1996 and another $2,500
in February 1997; in May she was mailed a check for $3,500. Upon
receipt of the $3,500 check she told the father's lawyer that
she had changed her mind and wanted to keep the child. She
returned the $3,500, but made no attempt to refund the other
The opinion of the Massachusetts Supreme Judicial Court reviewed
how other jurisdictions have addressed surrogacy through
legislation, and it discussed some of the major surrogacy cases,
including the 1988 New Jersey case of Baby M.
Massachusetts has no legislation on the subject of surrogacy.
The opinion first addressed whether the Massachusetts artificial
insemination statute had any bearing on surrogacy. The
artificial insemination statutes state that if a husband agrees
to the artificial insemination of his wife, he is considered the
father of any resulting child, but the Massachusetts high court
concluded the artificial insemination statute had no bearing on
the rights of parties under a surrogacy agreement.
Next, the court of review considered the impact of the
Massachusetts adoption statutes on surrogacy agreements and it
applied adoption laws to the surrogacy agreement. The opinion
Policies underlying our adoption legislation suggest that a
surrogate parenting agreement should be given no effect if the
mother's agreement was obtained prior to a reasonable time after
the child's birth or if her agreement was induced by the payment
The opinion specifically applied the Adoption Act provision of
not taking a consent to adoption until the fourth calendar day
after the birth of the child and applied it to a surrogacy
arrangement, although admitting that consent to the custody of a
child (as in this case) had less permanency than a consent to
Finally, the Massachusetts court attacked the surrogacy
agreement because of the $10,000 fee. The opinion states that
even though the agreement sought to attribute the payment to the
surrogate as not being related to custody or adoption, but
solely for the mother's services, "the father ostensibly was
promised more than those services because, as a practical
matter, the mother agreed to surrender custody of the child."
The opinion goes on to state:
The statutory prohibition of payment for receiving a child
through adoption suggests that, as a matter of policy, a
mother's agreement to surrender custody in exchange for money
(beyond pregnancy-related expenses) should be given no effect in
deciding the custody of the child.
Although throughout the opinion the basis for declaring the
surrogacy agreement unenforceable was the application of the
adoption model, in the part of the opinion titled "Conclusion"
the basis for declaring the surrogacy agreement unenforceable
switches to public policy and the opinion states:
We simply decline, on public policy grounds, to apply to a
surrogacy agreement of the type involved here the general
principle that an agreement between informed, mature adults
should be enforced absent proof of duress, fraud, or undue
It appears the Massachusetts court attempted to skirt the
adoption issue by not addressing it and stating only that the
mother agreed to give custody of the child to the father.
Perhaps it was felt that such an approach would be less
offensive and therefore make the agreement enforceable. If such
was the plan, it did not work. A better approach, it would seem,
would be to bite the bullet and state that the father and his
wife were the intended legal parents.
If the agreement had addressed the eventual adoption of the
child by the intended parents, then the application of the
adoption model to the surrogacy agreement by the Massachusetts
court may have been more legally appropriate, but the
Massachusetts court applied the adoption model to an agreement,
which on its face was only for custody.
Is there a prohibition for the payment of a consideration for
obtaining custody of a child? If there is a public policy
against the giving of a consideration for a custody award, then
our courts may well have to examine custody arrangements between
divorcing couples and in paternity suits much more carefully.
What of the cases that happen from time to time, where the
father takes custody of the children, and the mother is not
required to pay child support? What of the cases where the child
custody issue is settled by an unusually generous financial
settlement in favor of the spouse who relinquishes custody?
The critical issue is: Should the adoption model be applied to
the instant surrogacy contract? The distinctions between
adoption and surrogacy are:
A. In adoption proceedings the birth mother, almost without
exception, does not become pregnant intentionally. In these
cases it is the public policy not to have the birth mother's
decision as to whether to give up the child affected by monetary
considerations, that is, being paid for consenting to the
B. Adoption laws do not allow a birth mother to consent to
the adoption until some time (three days in Illinois) after
birth of the child. This is because of the involuntary nature of
the pregnancy and public policy that the mother should not give
up the child until she has actually given birth so that she can
make an objective decision in light of the reality of delivering
C. Surrogate mothers do not become pregnant unintentionally.
The pregnancy is by design and therefore she should be allowed
to agree to place the child for adoption (although not
officially consent to it) before she becomes pregnant.
D. A surrogate mother is not placing a child for compensation
since the child is half that of the father. Even by adoption law
standards there is no "placement" in a related adoption, e.g.
Thus the payment to the surrogate for her services does not
violate the provisions of the Illinois Adoption Compensation
Prohibition Act, 750 ILCS 525/1.01 et seq., because it is a
Adoption goes back to antiquity. Statutory adoptions in the
United States started many, many years before artificial
insemination procedures were developed. The procedure of
artificial insemination makes surrogacy a viable alternative to
adoption for the acquisition of a child. Because of a lack of
statutory procedure for the intended parents in a surrogacy
arrangement to be declared to be the legal parents of the child,
they must ultimately adopt the child. The Illinois laws
prohibiting the payment of a fee to a birth mother were not
intended to apply to surrogacy arrangements.
Illinois has no legislation in place addressing surrogacy. When
the New Jersey Baby M. cases was a cause celebre, in 1989, three
surrogacy bills were introduced to the Illinois General Assembly
(two allowing and governing surrogacy and the other making
surrogacy contracts unenforceable). After hearings before the
Senate Judiciary Committee, all three bills died in committee.
H. JOSEPH GITLIN, of the matrimonial law firm of Gitlin & Gitlin,
Woodstock, Illinois, has consistently been listed in The Best
Lawyers in America and named one of the nation's top 43 divorce
lawyers by the National Law Journal. He is a Fellow of the
American Academy of Matrimonial Lawyers and the American Academy
of Adoption Attorneys. He has held leadership positions in the
Illinois State Bar Association Family Law Section Council and
the American Bar Association Family Law Section. Mr. Gitlin is a
broadly published author and frequent lecturer on family law
topics. Gitlin is the author of Gitlin on Divorce: A Guide to
Illinois Matrimonial Law, a textbook for lawyers, and he
publishes the bi-monthly Gitlin on Divorce Reports, which
reports on family law court of review cases. He also authored
Adoption (a national work), published by Callaghan & Co.
Gitlin served as chair of the American Bar Association Family
Law Section Adoption Committee and Surrogacy Committee, and
currently chairs the Laws of Reproduction and Genetic Technology
2007 OPTS - The Organization of Parents Through Surrogacy