August 15, 1997, a Massachusetts surrogate delivered a child after contracting with a Rhode Island couple.

The parties had been assisted by New England Surrogate Parenting Advisors, who was responsible for screening the surrogate and the couple. The surrogate and her husband had passed NESPA’s psychological testing (although, importantly, he filed for divorce the week before the surrogate delivered, and, as the Supreme Court found, was never supportive of his wife’s decision to be a surrogate).

At the beginning of her third trimester, the surrogate decided that she did not wish to relinquish the child, and returned a $3,500 payment which had been tendered to her. She had already been paid $3,000 during the preceding months of her pregnancy.

Upon being notified of her decision to refuse to relinquish the child, the husband of the couple sought and obtained a court order requiring the surrogate to give the father custody of the child, and granting him temporary physical custody. The surrogate was also give visitation rights.

The surrogate and the father then agreed on custody and visitation, with the father having primary physical custody, and the surrogate having frequent visitation rights. The Massachusetts Supreme Court, then, accepted the case and issued a decision on the enforceability of surrogate contracts under Mass. law.

While the Court ultimately invalidated this surrogacy agreement, its analysis is interesting both for what it says and for what it does not say.

First and foremost, the Supreme Court’­s decision is limited only to Massachusett’s­ surrogates. While the parties had specified that Rhode Island’­s law was to govern the contract, apparently no one argued that to the Mass. Supreme Court.

Most states allow parties to a contract to determine whether another state’s law will govern the contract. Since neither side pressed the issue in this case, the Mass. Supreme Court simply assumed that its law would control. Second, the Mass. decision applies only to paid surrogates. The Mass. Supreme Court was actually quite favorably inclined to surrogacy in general. It did not find the concept of surrogacy to be objectionable, only those provisions in the contract which effectively required the surrogate’­s consent to the adoption of her child prior to its birth.

What the Mass.’ decision means for now is that it is risky to work with paid Massachusetts surrogates who are artificially inseminated. Mass. therefore becomes the 7th state where surrogacy should be avoided ( MI, NY, have all criminalized paid surrogacy, and NJ also has a Supreme Court decision adverse to surrogacy). No couple should work with a surrogate from those states.

Thirdly, the court made it clear that its decision only applied to AI surrogacy. The court said that had the surrogate undergone embryo transfer (where she was not in fact the genetic mother), then she would not have been able to state a claim for the child.

Next, the court also held that Mass.’­ artificial insemination by donor (AID) law–which about half of the states in the country have, and which says if a woman is artificially inseminated with sperm from a donor, then the woman’­s husband is presumed to be the child’s father–was inapplicable in this case.

Finally, the court held that the agreement itself was not unconscionable, i.e., did not violate public policy. This is significant because, while the Court did ask that its legislature try to address the issue, it did not suggest that surrogacy ought to be outlawed.

Quite to the contrary, the court specifically held that a surrogate contract which, among other things, did not condition payment on a consent to adoption might very well be enforceable.

Much of the above discussion concerns legal analysis. For couples considering surrogacy, however, the practical issues of the decision need to be addressed.

Clearly, and once again as has been evident repeatedly over the years, the single most important decision to make in pursuing surrogacy is choosing a surrogate program which has a reputation for honesty, integrity, and success.

While many programs exist throughout the country, only a handful have never had a problem. This particular arrangement now has the distinction of being the only time ever where a surrogate has passed psychological testing, where the couple has been made aware of the results, and where the surrogate has then changed her mind.

Many people choose a surrogate program and then a surrogate faster than they buy a home. As SMI has repeatedly stressed, this is the most important decision you will ever make, and it simply makes sense to investigate your options carefully.

  • What are the qualifications of the agency’s director?
  • Are they attorneys?
  • Infertility specialists?
  • Or simply people who have gone through surrogacy themselves and decided to open shop?
  • How many births have they had?
  • How many failures?
  • Are they OPTS members in good standing?

These are but a few questions to ask. Choosing an agency simply because it is nearby is both dangerous and foolish.

Ultimately, the Mass.’ decision is a narrow one.

It does not invalidate surrogacy, or even surrogacy contracts in general. It endorsed the concept of surrogacy. It embraced surrogacy, even paid surrogacy, where the payment and the relinquishment were not a quid pro quo. It even said that embryo transfer surrogacy was an entirely different situation.

More than anything, however, it cautioned couples that surrogacy is fraught with potential problems, and that those couples who elect to proceed need to ensure that the professionals who assist them have the experience, the knowledge, and the understanding to guide them to a successful conclusion.

Steven C. Litz, Founder and Director, Surrogate Mothers, Inc.