R.R. v. M.H.
| Decision Date | 22 January 1998 |
| Citation | 426 Mass. 501,689 N.E.2d 790 |
| Parties | R.R. v. M.H. & another. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Carol A. Erskine, Worcester, guardian ad litem.
Margaret Clapp-Winchester, Fitchburg, for the father.
The following submitted briefs for amici curiae:
Joyce M. Brousseau, pro se.
John J. Weltman, Boston, for The American Surrogacy Center, Inc.
Susan L. Crockin, Boston, for Boston Fertility Society & another.
Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, MARSHALL and IRELAND, JJ.
On a report by a judge in the Probate and Family Court, we are concerned with the validity of a surrogacy parenting agreement between the plaintiff (father) and the defendant (mother). Both the mother and the father are married but not to each other. A child was conceived through artificial insemination of the mother with the father's sperm, after the mother and father had executed the surrogate parenting agreement. The agreement provided that the father would have custody of the child. During the sixth month of her pregnancy and after she had received funds from the father pursuant to the surrogacy agreement, the mother changed her mind and decided that she wanted to keep the child.
The father thereupon brought this action and obtained a preliminary order awarding him temporary custody of the child. The mother's appeal from that order is moot because the parties have since agreed on custody and visitation and the judge has approved that agreement. We, therefore, do not discuss the circumstances of the temporary custody order, and nothing we say in this opinion should be understood to suggest that the subjects of custody or visitation need be reconsidered. The judge's order granting the preliminary injunction is before us on her report of the propriety of that order which was based in part on her conclusion that the father was likely to prevail on his assertion that the surrogacy agreement is enforceable. On our own motion, we transferred here the appeal and the report, which a single justice of the Appeals Court had consolidated. The question of the enforceability of the surrogacy agreement is before us and, although we could defer any ruling until there is a final judgment entered, the issue is one on which we elect to comment because it is fully briefed and is of importance to more than the parties. This court has not previously dealt with the enforceability of a surrogacy agreement.
The baby girl who is the subject of this action was born on August 15, 1997, in Leominster. The defendant mother and the plaintiff father are her biological parents. The father and his wife, who live in Rhode Island, were married in June, 1989. The wife is infertile. Sometime in 1994, she and the father learned of an egg donor program but did not pursue it because the procedure was not covered by insurance and had a relatively low success rate. Because of their ages (they were both in their forties), they concluded that pursuing adoption was not feasible. In April, 1996, responding to a newspaper advertisement for surrogacy services, they consulted a Rhode Island attorney who had drafted surrogacy contracts for both surrogates and couples seeking surrogacy services. On the attorney's advice, the father and his wife consulted the New England Surrogate Parenting Advisors (NESPA), a for-profit corporation that helps infertile couples find women willing to act as surrogate mothers. They entered into a contract with NESPA in September, 1996, and paid a fee of $6,000.
Meanwhile, in the spring of 1996, the mother, who was married and had two children, responded to a NESPA advertisement. She reported to NESPA that her family was complete and that she desired to allow others less fortunate than herself to have children. The mother submitted a surrogacy application to NESPA. The judge found that the mother was motivated to apply to NESPA by a desire to be pregnant, in order to earn money, and to help an infertile couple.
In October, Dr. Angela Figueroa of NESPA brought the mother together with the father and his wife. They had a seemingly informative exchange of information and views. The mother was advised to seek an attorney's advice concerning the surrogacy agreement. Shortly thereafter, the mother, the father, and his wife met again to discuss the surrogacy and other matters. The mother also met with a clinical psychologist as part of NESPA's evaluation of her suitability to act as a surrogate. The psychologist, who also evaluated the father and his wife, advised the mother to consult legal counsel, to give her husband a chance to air his concerns, to discuss arrangements for contact with the child, to consider and discuss her expectations concerning termination of the pregnancy, and to arrange a meeting between her husband and the father and his wife. 2 The psychologist concluded that the mother was solid, thoughtful, and well grounded, that she would have no problem giving the child to the father, and that she was happy to act as a surrogate. The mother told the psychologist that she was not motivated by money, although she did plan to use the funds received for her children's education. The mother's husband told the psychologist by telephone that he supported his wife's decision.
The mother signed the surrogate parenting agreement and her signature was notarized on November 1. The father signed on November 18. The agreement stated that the parties intended that the "Surrogate shall be inseminated with the semen of Natural Father" and "that, on the birth of the child or children so conceived, Natural Father, as the Natural Father, will have the full legal parental rights of a father, and surrogate will permit Natural Father to take the child or children home from the hospital to live with he [sic ] and his wife." The agreement acknowledged that the mother's parental rights would not terminate if she permitted the father to take the child home and have custody, that the mother could at any time seek to enforce her parental rights by court order, but that, if she attempted to obtain custody or visitation rights, she would forfeit her rights under the agreement and would be obligated to reimburse the father for all fees and expenses paid to her under it. The agreement provided that its interpretation would be governed by Rhode Island law.
The agreement provided for compensation to the mother in the amount of $10,000 "for services rendered in conceiving, carrying and giving birth to the Child." Payment of the $10,000 was to be made as follows: $500 on verification of the pregnancy; $2,500 at the end of the third month; $3,500 at the end of the sixth month; and $3,500 at the time of birth "and when delivery of child occurs." The agreement stated that no payment was made in connection with adoption of the child, the termination of parental rights, or consent to surrender the child for adoption. The father acknowledged the mother's right to determine whether to carry the pregnancy to term, but the mother agreed to refund all payments if, without the father's consent, she had an abortion that was not necessary for her physical health. The father assumed various expenses of the pregnancy, including tests, and had the right to name the child. The mother would be obliged, however, to repay all expenses and fees for services if tests showed that the father was not the biological father of the child, or if the mother refused to permit the father to take the child home from the hospital. The agreement also provided that the mother would maintain some contact with the child after the birth.
The judge found that the mother entered into the agreement on her own volition after The lawyer for the father sent the mother a check for $500 in December, 1996, and another for $2,500 in February. In May, the father's lawyer sent the mother a check for $3,500. She told the lawyer that she had changed her mind and wanted to keep the child. She returned the check uncashed in the middle of June. The mother has made no attempt to refund the amounts that the father paid her, including $550 that he paid for pregnancy-related expenses.
consulting legal counsel. There was no evidence of undue influence, coercion, or duress. The mother fully understood that she was contracting to give custody of the baby to the father. She sought to inseminate herself on November 30 and December 1, 1996. The attempt at conception was successful.
Approximately two weeks after the mother changed her mind and returned the check for $3,500, and before the child was born, the father commenced this action against the mother seeking to establish his paternity, alleging breach of contract, and requesting a declaration of his rights under the surrogacy agreement. Subsequently, the wife's husband was added as a defendant. The judge appointed a guardian ad litem to represent the interests of the unborn child. Proceedings were held on aspects of the preliminary injunction request (now resolved) and on the mother's motion to determine whether surrogacy contracts are enforceable in Massachusetts.
On August 4, 1997, the judge entered an order directing the mother to give the child to the father when it was discharged from the hospital and granting the father temporary physical custody of the child. She did so based on her determination that the father's custody claim was likely to prevail on the merits of the contract claim, and, if not on that claim, then on the basis of the best interests of the child. The mother was granted the right to frequent visits.
On August 13, 1997, the judge reported the propriety of her August 1 order which, as we have said, was based in part on her conclusion that the surrogacy contract was enforceable. She acknowledged that specific questions were not reportable under ...
To continue reading
Request your trial
-
Rosecky v. Schissel
...statutes and cases). 7.See, e.g., In re Marriage of Moschetta, 25 Cal.App.4th 1218, 30 Cal.Rptr.2d 893 (1994); R.R. v. M.H., 426 Mass. 501, 689 N.E.2d 790 (1998); Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (1988). 8.See, e.g., Daniel Gruenbaum, Foreign Surrogate Motherhood: Mater Semper......
-
In re Baby
...547 (2007) [hereinafter Watson, 6 Whittier J. Child & Fam. Advoc.]; Stacy Christman Blomeke, Note, A Surrogacy Agreement That Could Have and Should Have Been Enforced: R.R. v. M.H., 426 Mass. 501, 689 N.E.2d 790 (1998), 24 U. Dayton L.Rev. 513, 529 (1999). This distinction is consistent wit......
-
In re Adoption of a Minor
...comment on the [parental] rights and obligations, if any, of the [sperm donor] ... inferentially he has none.” R.R. v. M.H., 426 Mass. 501, 502, 509–510, 689 N.E.2d 790 (1998) (concluding that surrogacy agreement between plaintiff father, who had donated sperm, and defendant mother, who had......
-
E.N.O. v. L.M.M.
...conform to the child's best interests." Wilcox v. Trautz, 427 Mass. 326, 334 n. 7, 693 N.E.2d 141 (1998). 5 See R.R. v. M.H., 426 Mass. 501, 510-511, 689 N.E.2d 790 (1998); Osborne v. Osborne, 384 Mass. 591, 428 N.E.2d 810 (1981); Knox v. Remick, 371 Mass. 433, 437, 358 N.E.2d 432 (1976); J......
-
Genes, parents, and assisted reproductive technologies: arts, mistakes, sex, race, & law.
...in a gestational surrogacy case, father disclaimed all paternity); In re Moschetta, 30 Cal. Rptr. 2d 893, (Ct. App. 1994); R.R. v. M.H. 689 N.E. 2d 790 (Mass. 1998) (in dispute between father and surrogate mother, court refused to enforce surrogacy agreement); In re Baby M, 537 A. 2d 1227 (......
-
The Children of Baby M.
...and Traditional: The Argument for Nonenforcement, 31 Washburn L.J. 1, 7−8 (1991). 381 Field, supra note 380, at 7. 382 R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998). 383 Id. 384 Id. at 791. 385 Id. 386 Id. at 796, 797 (―The mother and father may not, however, make a binding best-interests-of-th......
-
Contractual Chaos: State-by-State Disparities and the Search for Equitable Enforcement of Surrogacy Agreements.
...lack of statutory clarity); see also infra note 67 (describing restrictive laws in Group A states). (69.) Compare R.R. v. M.H., 689 N.E.2d 790, 796-97 (Mass. 1998) (holding commercial surrogacy contracts unenforceable), -with N.Y. DOM. REL. Law [section] 122 (Consol. 2020) (establishing pub......
-
Parentage Prenups and Midnups
...surrogacy pacts substantively unenforceable in their states. See, e.g., In re Baby M., 537 A.2d 1227, 1235 (N.J. 1988); R.R. v. M.H., 689 N.E.2d 790, 793, 795 (Mass. 1998). Some state statutes explicitly prohibit surrogacy pacts. See, e.g., ARIZ. REV. STAT. § 25-218(A) (2007), invalidated b......