## Facts

- An intended father arranged in vitro fertilization using his sperm and an anonymous egg donor and implanted the embryo in his niece, who agreed to serve as a gestational surrogate and was not genetically related to the child.
- Before conception, the parties executed a written gestational-surrogacy agreement stating the surrogate would carry and deliver the child and disclaim any parental rights; the intended father agreed to pay surrogacy-related expenses and allegedly promised additional compensation.
- During pregnancy, the relationship deteriorated; the surrogate demanded substantially more money and allegedly threatened to terminate the pregnancy if not paid.
- The surrogate gave birth in Minnesota without notifying the intended father.
- After learning of the birth, the intended father filed a paternity and custody action in Minnesota; the court appointed counsel for the surrogate and the child.
- A county investigation recommended temporary custody for the intended father, finding the surrogate’s motivations were primarily financial and that she did not view the child as her son.
- The district court applied a choice-of-law clause selecting Illinois law, enforced the surrogacy agreement, adjudicated the intended father as the legal father, denied the surrogate parental rights, awarded the father sole legal and physical custody, and granted a change of the child’s name.
- The surrogate appealed.

## Issues

1. Whether a preconception gestational-surrogacy agreement is enforceable to deny parental rights to a non-genetic gestational carrier.
2. Whether the agreement’s Illinois choice-of-law clause was enforceable and, if so, whether Illinois law was correctly applied to determine parentage and custody.
3. Whether the district court abused its discretion in granting the intended father’s request to change the child’s name over the surrogate’s objection.

## Decision

- The Minnesota Court of Appeals affirmed the district court in all respects.
- The court upheld enforcement of the gestational-surrogacy agreement and the determination that the surrogate had no parental rights.
- The court upheld application of Illinois law under the contract’s choice-of-law clause and agreed Illinois law supported vesting parentage in the intended genetic father.
- The court affirmed the award of sole legal and physical custody to the intended father.
- The court affirmed the child’s name change as within the district court’s discretion.

## Legal Principles

- A gestational-surrogacy agreement may be enforced when the gestational carrier is not genetically related to the child and the agreement reflects preconception intent that the intended parent(s) will be the child’s legal parent(s).
- Minnesota courts generally honor contractual choice-of-law provisions when the selected state has a substantial relationship to the transaction and applying that law does not contravene a fundamental Minnesota public policy.
- Under Illinois’s statutory approach to gestational surrogacy, compliant agreements may establish parentage in the intended parent(s), rather than in a non-genetic gestational carrier.
- After parentage is determined, custody and related orders (including a minor child’s name change) are reviewed for abuse of discretion and assessed under the child’s best interests.

## Conclusion

The court enforced a preconception gestational-surrogacy agreement, validated the contract’s Illinois choice-of-law clause, and affirmed that the intended genetic father was the sole legal parent entitled to sole custody and to a name change for the child, while the non-genetic surrogate had no parental rights.


In re Paternity & Custody of Baby Boy A, No. A07-452, 2007 WL 4304448 (Minn. Ct. App. Dec. 11, 2007)