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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 monies.

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 states:

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 of money.

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 adoption.

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 influence.

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 adoption.

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 the child.

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. stepparent adoption.

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 related adoption.

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 Committee.


2007 OPTS - The Organization of Parents Through Surrogacy