P.M. v. T.B.

• Decision Date: 16 February 2018
• Docket Number: No. 17-0376,17-0376
• Citation: 907 N.W.2d 522
• Parties: P.M. and C.M., Appellees, v. T.B. and D.B., Appellants.
• Court: Iowa Supreme Court

907 N.W.2d 522

P.M. and C.M., Appellees,
v.
T.B. and D.B., Appellants.

No. 17-0376

Supreme Court of Iowa.

Filed February 16, 2018

Caitlin L. Slessor of Shuttleworth & Ingersoll, Cedar Rapids (until withdrawal); Harold J. Cassidy of The Cassidy Law Firm, Shrewsbury, New Jersey; and Andrew B. Howie of Shindler, Anderson, Goplerud & Weese P.C., West Des Moines, for appellants.

Philip J. De Koster of De Koster & De Koster, PLLC, Hull, and Kevin C. Rigdon of Howes Law Firm, P.C., Cedar Rapids, for appellees.

WATERMAN, Justice.

In this appeal, we must decide a question of first impression: whether gestational surrogacy contracts are enforceable under Iowa law. The plaintiffs, the intended parents, are a married couple unable to

907 N.W.2d 525

conceive their own child. They signed a contract with the defendants, the surrogate mother and her husband, who, in exchange for future payments of up to $13,000 and medical expenses, agreed to have the surrogate mother impregnated with embryos fertilized with the plaintiff-father's sperm and the ova (eggs) of an anonymous donor. The defendants agreed to deliver the baby at birth to the intended parents. The surrogate mother became pregnant with twins, but after demanding additional payments, refused to honor the agreement. The babies were born prematurely, and one died. The intended parents sued to enforce the contract and gain custody of the surviving child. The district court, after genetic testing, ruled the contract is enforceable, terminated the presumptive parental rights of the surrogate mother and her husband, established paternity in the biological father, and awarded him permanent legal and physical custody. The defendants appealed, and we retained the case.

For the reasons explained below, we affirm the rulings of the district court. We hold this gestational surrogacy contract is legally enforceable in favor of the intended, biological father against a surrogate mother and her husband who are not the child's genetic parents. The intended parents would not have entrusted their embryos to the surrogate mother, and this child would not have been born, without their reliance on the surrogate's contractual commitment. A contrary holding invalidating surrogacy contracts would deprive infertile couples of the opportunity to raise their own biological children and would limit the personal autonomy of women willing to serve as surrogates to carry and deliver a baby to be raised by other loving parents. The district court properly established paternity in the biological father based on the undisputed DNA evidence and terminated the presumptive parental rights of the surrogate mother and her husband. The district court correctly awarded permanent custody of the child to the biological, intended father.

I. Background Facts and Proceedings.

P.M. and C.M. were high school sweethearts but parted ways when P.M. joined the Navy upon graduation. After marrying and divorcing other spouses, they reconnected and married each other in 2013. They now live in Cedar Rapids. P.M. had two children from his first marriage, and C.M. had four children from hers. The Ms were nearing age fifty and wanted to have a child together. C.M. was no longer able to conceive, so the Ms placed an advertisement on Craigslist in 2015 seeking a woman willing to act as a surrogate mother.

T.B. and D.B. married each other in January 2009 and live in Muscatine. T.B. has four children from a prior marriage; D.B. has no children and had never been married. The Bs want to have children together. In 2010, T.B. had a tubal pregnancy which was life-threatening and incapable of leading to the birth of a viable child, so she surgically terminated the pregnancy. T.B. and D.B. continued to try to conceive without success. The Bs realized they would need the services of a reproductive endocrinologist in order to have a child. T.B. learned that the Bs' insurance would not cover infertility treatment or in vitro fertilization (IVF). They decided they needed to supplement D.B.'s income to pay for assisted reproduction procedures.

T.B. responded to the Ms' Craigslist advertisement. The four met for dinner in Coralville and got along well at first. They agreed that T.B. would gestate two embryos fertilized in vitro with P.M.'s sperm and the eggs of an anonymous donor. The

907 N.W.2d 526

Ms selected Midwest Fertility Clinic (Midwest) in Downers Grove, Illinois, to perform the IVF and embryo transfers. Midwest required a written contract between the parties, so the Ms hired a lawyer to draft the agreement. Its stated purpose was "to enable the Intended Father [P.M.] and the Intended Mother [C.M.] to have a child who is biologically related to one of them." In exchange for the gestational service, the Ms agreed to pay up to $13,000 for an IVF procedure for T.B. to enable her and D.B. to conceive their own child. This payment was conditioned upon T.B. surrendering custody of a live child upon birth.

The Intended Parents [the Ms] agree that after the Gestational Carrier [T.B.] has delivered a live child pursuant to this contract for the Intended Parents, the Intended Parents will pay for an IVF (Invitro Fertilization) cycle for the Gestational Carrier and her husband up to the amount of $13,000.

The contract also provided that the Ms would pay T.B.'s pregnancy-related medical expenses. At T.B.'s request, an additional term was included stating that "[i]n the event the child is miscarried or stillborn during the pregnancy, the amount of $2,000 will be paid to the Gestational Carrier." The four adults signed the final "Gestational Carrier Agreement" (the Surrogacy Agreement) on January 5, 2016.

The Surrogacy Agreement provided that T.B.

understands and agrees that in the best interest of the child, she will not form or attempt to form a parent-child relationship with any child or children she may carry to term and give birth to pursuant to this agreement.

T.B. and D.B. "agree[d] to surrender custody of the child to the Intended Parents immediately upon birth" and "agree[d] that the Intended Parents are the parents to be identified on the birth certificate for this child." The Surrogacy Agreement further provided,

In the event it is required by law, the Gestational Carrier and her husband agree to institute and cooperate in proceedings to terminate their respective parental rights to any child born pursuant to the terms of this agreement....

The Surrogacy Agreement also stated that

each party has been given the opportunity to consult with an attorney of his or her own choice concerning the terms [and] legal significance of this agreement, and the effect it has upon any and all interests of the parties.

T.B. and D.B. did not exercise their right to consult a lawyer before the Surrogacy Agreement was signed by all four parties. But each person acknowledged in writing

that he or she has carefully read and understood every word in this agreement and its legal effect, and each party is signing this agreement freely and voluntarily and that neither party has any reason to believe that the other party or parties did not understand fully the terms and effects of this agreement, or that the other party did not freely and voluntarily execute this agreement.

On March 27, Midwest implanted two embryos into T.B.'s uterus. The embryos were the ova of an anonymous donor fertilized with P.M.'s sperm. On April 4, blood testing confirmed T.B.'s pregnancy. The parties' relationship soon began to break down over their disagreement as to payment of medical expenses.¹ All four attended

907 N.W.2d 527

the first ultrasound, which D.B. videotaped. The Ms later objected to his videotaping and to T.B. posting information about the baby on social media.

Their relationship worsened after the women exchanged text messages on April 13. They were discussing whether T.B. could attend a doctor's appointment scheduled by the IVF coordinator when C.M. wrote, "Well we have to go next Thursday [because the coordinator] made the [appointment] and this is our journey not anyone else's. She said you have to end with [a doctor's] exam in Chicago and [a] couple more ultrasounds...." T.B. replied, "I'm not going through this with you today. She just called me." C.M. replied, "We are in charge we hired you so just let us be parents and enjoy this ok!"

A second ultrasound confirmed that T.B. was carrying viable twins. T.B. shared that news with the Ms, but the relationship remained rocky. In late April, C.M. texted this to T.B.:

Every time we question you or try to make a decision (as we should be able to) we are paying you, we hired you, and we are in charge, you get mad and upset and blow up. A carrier shouldn't act like that as the doctors told me they should be saying yes ma'am Whatever you guys want to do. But you can't stand not being in charge and you have some mental disorder for sure but yet you blame everything on us.... So if you wanna say u have it bad try feeling how we feel. This is our baby not yours and imagine how U would feel. I know u don't care but just for a moment stop blaming us and look what U have done to us only cuz we have ask[ed] u to do something. Compare the two and u will see we

...