Family Law

More Good News From The Supreme Court!

If the high court ever decides to hear a surrogacy case, we can hope that at least five of the justices side with families.

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If you thought this was another Brett Kavanaugh article, don’t worry. I am definitely not talking about any particular new justice, and actually, let’s avoid that topic at all costs. The latest good news from our nation’s highest court is about a different topic entirely. For the second time in two weeks, SCOTUS has denied a writ of certiorari in a case where a surrogacy relationship went sideways.

Earlier this month, the Court denied certiorari (or “cert”) in the Melissa Cook case. There, a California surrogate tried to take legal custody of the triplets she carried for someone else, and asked the Court to declare California’s surrogacy statute unconstitutional in full. The Court declined to hear the case, and no justice dissented from the denial of cert.

Internet Matching and Tragedy

Now, the Court has done it again in the Iowa case of T.B. v. P.M. You may recall this case from prior columns, because it involves familiar details about informal internet matches gone awry, which often result in tragedy. The intended parents were unable to conceive without assistance, and sought out a gestational carrier and found a volunteer online. Well, not quite a “volunteer.” The gestational carrier in this case agreed to act as a surrogate for the intended parents in exchange for the intended parents paying for her to go through in vitro fertilization (IVF) for herself — like, for a subsequent pregnancy after she delivered the surrogate baby — at a cost of $13,000.

To be fair, the going compensation for gestational carriers in the United States is way above $13,000, and often even above $40,000. And IVF itself is often more than $13,000. So this surrogate didn’t exactly strike a good bargain. Still, everything was agreed to by the parties in writing, and the gestational carrier underwent IVF with the intended parents’ embryos. The embryos had been formed from the intended father’s sperm and anonymous donor eggs. The surrogate then became pregnant with twins!

But, as all good lawsuit stories go, the relationship between the parties took a turn for the worse. In fact, the communication broke down to such a degree that when the gestational carrier delivered the children only 27 weeks into the pregnancy (that is really early), she didn’t even tell the intended parents. Nor did she tell them when one of the twins passed away a few days after birth.

The intended parents did, eventually, learn of the birth and the death of one of the children. Soon after, they were able to find and gain custody of their surviving child, an adorable daughter. But their suffering did not end there. Supported by the same entities and same attorney as in the Cook case, the gestational carrier brought suit against the intended parents. The gestational carrier asked that surrogacy be found unconstitutional under the federal Constitution.

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Yay!…For Now

I spoke with Philip De Koster, counsel for the intended parents, in the case. He said that he and the intended parents “are excited that the parents can finally focus on parenting.” I asked De Koster if he wasn’t at least a tiny bit sad about not arguing the case before the Supreme Court. He replied, “No, we’re happy that this is over for our clients without further review. While it might be nice if this case resulted in nationwide protections for families, these parents never set out to be crusaders. They just want to be parents.” So while the denial of cert doesn’t have any precedential value, it means at least that the justices aren’t interested in the topic for now; sometimes, that’s a victory in itself!

These cases are heartbreaking, and I can certainly understand that surrogacy raises a number of ethical concerns. These include concerns for the rights and treatment of the surrogate as well as the rights and treatment of any child conceived through surrogacy. While many countries in Europe and Asia have reacted to uncomfortable surrogacy situations by banning the practice all together, that shouldn’t be the answer. First, as we all learned from Ian Malcolm in Jurassic Park, life always finds a way. The motivation is strong for those unable to have a child by traditional methods, to seek options. Not to mention that legal and regulated gestational surrogacy brings hope and the fulfillment of dreams to thousands of families a year.

It is possible that these just weren’t the right cases or the Court doesn’t want to wade in just yet. But I am sure this is not the last we have heard from Harold Cassidy, the man leading the charge on the legal attacks on surrogacy.  The best we practitioners can do is to make sure we abide by the highest ethical standards at all times to avoid, or at least keep to a minimum, the disaster cases. Supporters can advocate to legislatures to enact safeguards that ensure legal and other protections in gestational carrier arrangements. That’s for the good of the intended parents, surrogate, and child. Then when the day comes that the Supreme Court decides to hear a surrogacy case, we can hope that at least five of the justices side with families.

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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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