Why You Want A Surrogacy Contract (Even If There’s No Chance You Can Enforce It)

Two recent stories about surrogacy can be tied together here to offer an important lesson:  People who contemplate surrogacy should, at a minimum, work out a detailed agreement that describes what it is they think they’ve agreed to.   (Of course, people really ought to do a great deal more than that.  In particular, they ought to have serious counselling and engage in extensive reflection about whether surrogacy is really for them.  This, as I’ve said before, is really the key to having surrogacy work for you.)  But at the same time, you should keep in mind that what you write in the terms may not be enforcable.

First we have this story of what might be surrogacy gone awry.   Except, of course, that it may not be surrogacy at all.    What we know for sure is that Cindy Close gave birth to twins in Texas.  She is not genetically related to the babies.  This tells us for certain that the egg came from another (anonymous) woman and that Cindy became pregnant via IVF.

It is here that things diverge.   Marvin McMurrey is the man who provided the sperm used to fertilize the eggs.   He says that Close is a surrogate–a gestational surrogate at that.   In other words, he says she agreed to undergo IVF and carry the babies to term without any intention of being their parent.   His theory is that she isn’t a legal parent and, since he is, he gets sole custody.

Close tells a different story.  She says that she intended to coparent with McMurrey.   She argues that as she gave birth to the children she is a legal parent and hence, this is a custody case.  (She does not dispute McMurrey’s assertion that he is a legal parent.)

Critically, it seems to me that the parties agree that there is no written agreement.  And so there’s a question of law here about whether she can be deemed a surrogate in the absence of an agreement.  There’s also a question of fact about whether there ever was any agreement.

It’s interesting to try to work through those questions and I will endeavor to follow the case and see how the court resolves them.  But for the moment I’ll take a different tack and draw a different lesson here.  Surely we can conclude that if you are planning to do surrogacy you should have a written agreement.   This may not resolve all the questions–surrogacy is often legally questionable–but at the very least it removes questions about whether there was an agreement and what the agreement was.

But one does well to recall that even where surrogacy agreements are permissible and have legal effect (which is to say that surrogacy is recognized), not all the terms in a surrogacy agreement may be enforceable.   This brings me to a second set of news stories–about Mitt Romney’s son’s use of a surrogate.    (I’m afraid that this story is somewhat inflammatory.)  Here there was a written contract.

The thing is, the contract provided that the decision to abort was to be left to the intended parents.   I don’t think there’s any chance this could be enforceable.  What I mean is that there is no way that the Romneys could have forced the pregnant woman to have an abortion had she objected.   And if she wanted to have an abortion, I don’t believe the contractual provision could prevent her from doing so.  Simply put, the choice remains hers.

You might come up with a subsidiary question–could the Romneys request that she have an abortion and, if she does not, consider the contract invalidated and the child to be hers and not theirs?   I rather doubt it, though I probably ought to think more about it.

This might be an instance of a clause that has no business being in a surrogacy contract.  It’s odd to me that the quoted lawyer says that the provision was an oversight–accidentally left in the contract.  This suggests it is a standard part of some gestational surrogacy contracts.

Now I really do think it is useful to have an agreement and even to include items that might not be enforceable if it helps the parties be clear on what their intentions are.   But there’s a line I’d draw–some provisions are so clearly unenforceable that including them is deceptive.   It might deceive the IPs or it might deceive the surrogate, but either one of those is bad.   This clause would be (from my perspective anyway) across that line.

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