Hodas v. Morin

• Decision Date: 30 June 2004
• Citation: 442 Mass. 544,814 NE 2d 320
• Parties: RICHARD I. HODAS & another v. KIMBERLY MORIN & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

442 Mass. 544

814 NE 2d 320

RICHARD I. HODAS & another¹ v. KIMBERLY MORIN & others.²

Supreme Court of Massachusetts, Berkshire.

June 30, 2004.

August 26, 2004.

Present: Marshali, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Renée S. Wetstein for the plaintiffs.

John F. Rogers for Berkshire Health Systems, Inc.

MARSHALL, C.J.

Does a Probate and Family Court judge have authority pursuant to G. L. c. 215, § 6, to issue prebirth judgments of parentage and to order the issuance of a prebirth record of birth, see Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285 (2001), where neither the genetic parents nor the gestational carrier with whom they contracted to bear a child reside in Massachusetts, but where the contract specifies that the birth occur at a Massachusetts hospital? A judge in the Probate and Family Court answered that question in the negative, and dismissed the genetic parents' (plaintiffs) uncontested equity action for a declaration of paternity and maternity and for a prebirth order. She then reported her decision to the Appeals Court. See Mass. R. Civ. R. 64 (a), as amended, 423 Mass. 1403 (1996). On June 22, 2004, a single justice of the Appeals Court enjoined the defendant Berkshire Health Systems, Inc., corporate owner of Berkshire Medical Center in Pittsfield (hospital), from issuing any birth certificate for a child born of the gestational carrier, or filing the same with the Commissioner of Public Health. See G. L. c. 46, §§ 1, 3, 3A. On June 25, 2004, we transferred the matter here on our own motion. We conclude that, in the circumstances here, the plaintiffs are entitled to the relief they seek: judgments of paternity and maternity and a prebirth order establishing their legal parentage.³

1. Facts. The plaintiffs, who are married, reside in Connecticut. The gestational carrier and her husband, both nominal defendants, reside in New York. The hospital, the other nominal defendant, is a licensed Massachusetts hospital whose statutory duties include, among others, reporting information concerning births at the hospital to the city or town clerk where the birth occurred.

In April, 2003, the plaintiffs, the gestational carrier, and the gestational carrier's husband entered into a fifteen-page "Contract Between a Genetic Father, a Genetic Mother, a Gestational Carrier and Her Husband" (gestational carrier agreement). The parties represented that each had been advised by counsel of their choice prior to entering into the agreement. Among other things, the gestational carrier agreement provided that any child resulting from the agreement would be delivered at the hospital, if at all possible,⁴ and that in any event the gestational carrier would "take all reasonable steps to give birth to any child carried pursuant to this Agreement at a Hospital located in the State of Massachusetts." It is undisputed that the parties chose Massachusetts as the site of the birth in part to facilitate obtaining a prebirth order.⁵

The parties' preference for Massachusetts was further expressed in the following choice of law provision:

"The Gestational Carrier and [her] husband agree that they are entering into this Agreement with the intention that in accordance with the laws of the State of Massachusetts, they will take whatever steps are necessary to have the Genetic Father and the Genetic Mother named as the natural, legal and genetic parents, to have the Genetic Father and the Genetic Mother named as the father and mother, respectively, of [the] child on the child's birth certificate, and to permit the Genetic Father and the Genetic Mother to obtain physical custody of any child born as the result of this Agreement. . . . The parties further agree that this Agreement shall be governed by Massachusetts law."

Approximately six months after the parties entered into the gestational carrier agreement, the gestational carrier was successfully implanted with an embryo produced from the male plaintiff's sperm and the female plaintiff's egg. The implantation took place in Connecticut. The gestational carrier received at least some prenatal care at the hospital. At oral argument on June 30, 2004, counsel informed the court that an induced delivery was planned at the hospital the following week.

2. Jurisdiction. In her report, the Probate and Family Court judge stated that "[t]he primary question presented is whether, under the circumstances of this case, this Court has jurisdiction to grant the relief requested?" The Probate and Family Court's jurisdiction over this case, however, is clear. First, as a general matter, the Probate and Family Court has subject matter jurisdiction in questions of law and equity concerning parentage. See, e.g., G. L. c. 209C; G. L. c. 215, § 6. More specifically, as we held in Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285 (2001), a Probate and Family Court judge has authority pursuant to G. L. c. 215, § 6, to consider a request for a prebirth order where, as here, "(a) the plaintiffs are the sole genetic sources of the [child]; (b) the gestational carrier agrees with the orders sought; (c) no one, including the hospital, has contested the complaint or petition; and (d) by filing the complaint and stipulation for judgment the plaintiffs agree that they have waived any contradictory provisions in the [gestational carrier] contract (assuming those provisions could be enforced in the first place)." Id. at 291-292. That the gestational carrier, her husband, and the plaintiffs all reside outside of Massachusetts does not bar the Probate and Family Court's subject matter jurisdiction under G. L. c. 215, § 6, because the equity statute poses no residency requirement.⁶ Cf. G. L. c. 208, § 5 (in proceeding for divorce, plaintiff must be domiciled in Massachusetts); G. L. c. 215, § 3 (for probate of will, decedent must have been inhabitant or resident of respective county at time of death).

Second, personal jurisdiction is also proper. The Probate and Family Court, of course, has personal jurisdiction over the hospital, a Massachusetts corporation. See G. L. c. 223A, § 2. Indeed, it is doubtful that any other State could grant the plaintiffs the injunction they seek requiring the hospital to report certain information about the child's parentage to Massachusetts officials. The Probate and Family Court's personal jurisdiction over the gestational carrier and her husband derives from their stipulation for entry of judgment in favor of the plaintiffs. Vangel v. Martin, 45 Mass. App. Ct. 76, 79 (1998) paraphrasing in parenthetical to Precision Etchings & Findings, Inc. v. LGP Gem, Ltd., 953 F.2d 21, 25-26 (1st Cir. 1992) ("the defense of lack of personal jurisdiction . . . may be waived by express submission, conduct, or failure to assert the defense"). See Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974). In short, the jurisdictional issues here are not problematic.

3. Choice of law. The driving issue in this case, rather, concerns choice of law. The interested couples come from different States; the chosen hospital from yet a third. None of the individual parties resides in the Commonwealth, yet they have contracted that Massachusetts law govern the gestational carrier agreement and, by extension, the petition for judgments of parentage and for a prebirth order. We must consider whether to respect their choice.⁷

The gestational carrier agreement implicates the policies of multiple States in important questions of individual safety, health, and general welfare. Complicating matters is the fact that the laws of Connecticut, New York, and Massachusetts, the three States that potentially could govern the agreement, are not in accord. In Connecticut, where the genetic parents reside, gestational carrier agreements are not expressly prohibited by, and perhaps may be contemplated by, the recently amended statute governing the issuance of birth certificates. See Conn. Gen. Stat. c. 93, § 7-48a, 2004 Conn. Legis Serv. P.A. 04-255 (West 2004) ("On and after January 1, 2002, each birth certificate shall contain the name of the birth mother, except by the order of a court of competent jurisdiction . . ."). The gestational carrier resides in New York, a State that has expressed a strong public policy against all gestational carrier agreements. See N.Y. Dom. Rel. Law § 122 (McKinney 1999) ("Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable").⁸ Massachusetts, as we have noted, recognizes gestational carrier agreements in some circumstances. See Culliton v. Beth Israel Deaconess Med. Ctr., supra; R.R. v. M.H., 426 Mass. 501 (1998).

In light of these differing State policies and the parties' declared intent to follow Massachusetts law, we look to our established "functional" choice of law principles and to the Restatement (Second) of Conflict of Laws, with which those principles generally are in accord.⁹Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631-632 (1985). As a rule, "[w]here the parties have expressed a specific intent as to the governing law, Massachusetts courts will uphold the parties' choice as long as the result is not contrary to public policy." Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 260 (1977), citing Restatement (Second) of Conflict of Laws § 187 (1971).¹⁰ See Morris v. Watsco, Inc., 385 Mass. 672, 674 (1982) ("Massachusetts law has recognized, within reason, the right of the parties to a transaction to select the law governing their relationship"). The Restatement similarly presumes that the law the parties have chosen applies, unless "(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state" and is ...