Facts
- R.R. (biological father) and M.H. (biological mother) arranged for M.H. to be artificially inseminated with R.R.’s sperm in Massachusetts.
- Both R.R. and M.H. were married to other people; M.H.’s husband, D.H., was joined because the child would be born into an existing marriage.
- Before conception, R.R. and M.H. signed a written surrogate parenting agreement stating that R.R. would have custody after birth.
- The agreement required R.R. to pay M.H. $10,000 “for services rendered” in conceiving, carrying, and giving birth, plus certain pregnancy-related expenses; it also required repayment if M.H. later sought custody or visitation.
- In the sixth month of pregnancy, after receiving payments, M.H. decided she wanted to keep the child.
- R.R. sued in the Probate and Family Court to enforce the agreement and obtain custody; the court issued a preliminary injunction granting him temporary custody and ordering delivery of the child to him upon birth.
- While an appeal was pending, the parties reached a private custody and visitation agreement that the Probate and Family Court approved, mooting the appeal from the temporary custody order.
- The enforceability of the surrogacy agreement was reported for appellate review, and the Supreme Judicial Court addressed the question due to its public importance.
Issues
- Whether a surrogacy parenting agreement requiring a birth mother, before birth and for compensation beyond pregnancy-related expenses, to surrender custody is enforceable under Massachusetts law and public policy.
- Whether the mother’s prebirth consent to surrender custody, given in consideration of a $10,000 payment, has legal effect.
- Whether custody can be determined by enforcing the private agreement rather than applying the best-interests-of-the-child standard.
Decision
- The Supreme Judicial Court concluded the surrogacy agreement was unenforceable as contrary to Massachusetts public policy.
- The court held the mother’s consent to surrender custody was void where obtained before the fourth day after birth and induced by compensation beyond pregnancy-related expenses.
- The court stated custody must be determined by a court under the child’s best interests, and the agreement could not control that determination.
- The court rejected reliance on assisted-reproduction paternity provisions to validate the agreement for a child born to a married surrogate mother.
Legal Principles
- In Massachusetts, an agreement for a birth mother to relinquish custody is given no effect if her consent is secured before a reasonable postpartum period, defined as no earlier than the fourth day after birth.
- An agreement to relinquish custody in exchange for compensation beyond pregnancy-related expenses violates public policy and should not be treated as a basis for awarding custody.
- Private agreements concerning child custody cannot displace the court’s duty to determine custody based on the best interests of the child.
- Statutes governing paternity acknowledgments in assisted reproduction do not supply an independent basis to enforce a paid surrogacy contract involving a child born to a married woman.
Conclusion
Massachusetts refused to enforce a paid, prebirth surrogacy contract, treating prenatal consent induced by non-expense compensation as legally ineffective and requiring that custody be resolved by a best-interests determination rather than by specific performance of the agreement.