Family Law

Racism, Blackmail, And Death: Iowa Supreme Court Makes Pro-Surrogacy Ruling In Tumultuous Case

Let's count this as an important half-victory for securing the rights of intended parents to enter into valid surrogacy agreements.

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Last week, the Iowa Supreme Court ruled in favor of the intended parents in a surrogacy arrangement gone wildly wrong. The judgment finally secured the parental rights of an intended parent who was also the genetic father of the baby.

The case also set a valuable precedent for enforcing surrogacy contracts in Iowa. Intended parents and gestational surrogates — as well as fertility doctors and assisted reproductive technology attorneys in the Hawkeye State — can all celebrate the new certainty and dependability of many of these arrangements. However, the decision left open the possibility that some parents may be left out in the bitter Iowa cold.

Racism, Blackmail, and Death. It’s a bad sign when the court quotes inflammatory text messages between the parties! As I wrote about last June, this case started when a couple married later in life, and decided they wanted a child together. The intended mother was unable to provide healthy eggs or carry a child, so the couple turned to an anonymous egg donor and a separate gestational carrier. They presumably lacked the money to use a reputable surrogacy matching program, because, like many terrible cases I write about, the couple found their surrogate over the internet.

Interestingly, the surrogate was struggling with her own infertility issues. Apparently, she was able to carry a child, but not conceive one with her partner. So before finalizing their arrangement, the two couples met in person and struck a deal. The surrogate would carry the intended parents’ child first, in exchange for the intended parents paying for her IVF at the same clinic after the first baby was born. The offer was to pay up to $13,000, which was generally enough to go through the process at the relevant clinic.

A contract was entered, embryos were transferred, and a twin pregnancy was confirmed. But the relationship between the couples went off the tracks fast. The court quotes a text message from the intended mother to the surrogate: “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 … you have some mental disorder for sure…” Oh boy. No emoji can save that one.

In my experience, no one likes to be told they have a “mental disorder.” Even the cable customer service representative doesn’t like it. But the problems between the couples didn’t stop there. In an email exchange where the surrogate’s attorney was actually copied, the intended parents dropped the n-word bomb on the African-American surrogate. The surrogate and her spouse eventually cut off all direct contact with the intended parents.

While the intended parents’ behavior was totally unacceptable, this wasn’t a one-sided disaster. Despite the executed contract between the couples, the surrogate and her spouse had their lawyer demand that the intended parents increase the compensation amount to $30,000. This was the amount that they said they needed to do IVF at another, more expensive clinic.

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Against all of this drama, the surrogate gave birth to the twins 13 weeks early. That is really early, even for twins. But because of the falling out, the surrogate did not tell the intended parents about the birth. And sadly, one of the twins died eight days after birth. Ultimately, the intended parents suspected that the birth had happened, and that the birth mother might be trying to keep the baby. So the intended parents filed a petition in court to secure their parental rights. The petition was initially granted, and after a long procedural back and forth, the case reached the Iowa Supreme Court.

Strong Pro-Surrogacy Language. As my readers know, much of the world struggles with the ethics of surrogacy. But the Iowa Supreme Court firmly ruled that if the courts did not uphold the contract, they 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 a surrogate to carry and deliver a baby to be raised by other loving parents.” That broad language is very good.

At the same time, the court rejected the surrogate’s attorney’s argument that “surrogacy agreements, if enforced, embody deviant societal pressures, the object of which is to use the woman… It assumes she can be used much like a breeding animal and act as though she is not, in fact, a mother.”

These are familiar factions in the ongoing debate about surrogacy.

Partial Victory? While the ruling is certainly a victory for the intended parents — however unsympathetic they might be — and future surrogacy arrangements, some argue that the court didn’t go far enough. Specifically, the intended mother, without a genetic connection to the child, was not expressly ruled to be a legal parent to the child. Instead, the court noted that “when the intended mother is not the egg donor, she may replace the birth mother on a new certificate of live birth through a formal adoption.”

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But that’s a major inconvenience. Some states, such as California and Nevada, helpfully do not require a non-genetic intended parent to go through an adoption proceeding to secure parental rights. Catherine Tucker, an ART-specialized attorney based in the Granite State, argues that “the Iowa Supreme Court came to the right conclusion, but for the wrong reasons.” Tucker notes that the court determined that the gestational carrier was not a biological parent of the child, and thus had no parental rights. But that was also true for the intended mother, whose eggs were not used. And in some cases, couples use an egg donor and a sperm donor (or a donated embryo) and a surrogate to have a child. In those cases, the door may be open to questioning literally everyone’s parental rights. Tucker notes that if the Iowa Supreme Court is going to use broad language to say that they enforce gestational carrier agreements, “they really need to enforce it.” And that means enforcing it regardless of genetics as well.

Philip J. De Koster, attorney for the intended parents, points out that the court did not create the state’s legal paradigm on parental rights in this context out of nothing, but instead “referenced the procedure already created by the administrative agency. The regs were not being challenged (by either side). Thus, they essentially had no choice but to follow them, unless they wanted to really color outside the lines.”

For now, we’ll count this as an important half-victory for securing the rights of intended parents to enter into valid surrogacy agreements. Go Iowa.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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