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On July 22, 2021, the Massachusetts Court of Appeals ruled in the case of Guardianship of Keanu. It was billed as a surrogacy case, but, in the end, wasn’t really one.
You know a case is especially full of drama when the court’s opinion spends several pages quoting straight from the Facebook messages between the parties. Note to readers: don’t forget that all of your Facebook, IG, and TikTok messages may one day be discoverable!
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‘Who wants to pop out a baby for my fiancé and I?’
This was the message the “intended mother” posted on Facebook and which started the epic story. Surprisingly, the random message she posted received a response that someone was, indeed, interested. The respondent, known in the court opinion as the “biological mother” attended third grade with the intended mother’s fiancé, who the court calls “Ms. R.”
In one message, the biological mother wrote: “Hey, …If you guys were ready and wouldn’t back out I am pretty sure I could do it. … I wouldn’t want money or anything. If you guys are being serious, when you and if you really want a baby and you guys don’t want to go about it another way, then I would have a baby and do an adoption for you guys.”
After some additional discussion ensued between intended mother and biological mother regarding moving forward, the intended mother conveyed that she wanted to be at all the appointments, and biological mother communicated that she wouldn’t request any contact with the child after birth. Also the biological mother wrote: “I’ve been reading our messages to my bf [boyfriend] too and he agrees to all this.”
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Did Anyone Talk To An Attorney?
Shockingly, to no one, no legal agreement was entered into. At least one attorney was consulted, but the messages indicated that the parties weren’t totally in tune with what the attorney was saying. And it doesn’t sound like the lawyer’s advice was heeded.
In one conversation, the biological mother texted: “Idc [I don’t care] what the lawyer says. If he’s like well this could be an issue or w.e. [whatever]. Like I’m having a baby for this couple end of story…”
Intended mother: “Yeah exactly! Like I hope they don’t pull home checks and such like adoption agencies do, this is all private and I hope it stays that way with dcf [the Department of Children and Families] not in my life lol.”
Pesky lawyers. In any event, I’ll go ahead and spoil it. DCF ended up in their lives.
So after everyone decided to ignore what legal advice they received, the biological mother started trying to conceive with her boyfriend and kept the intended mother apprised of the progress, as well as when she successfully became pregnant. What could go wrong?
That’s Not How It’s Done.
I should note that for actual surrogacy, this is not how conception happens. Most surrogacy in the United States is “gestational surrogacy,” where a surrogate undergoes an embryo transfer procedure with an embryo genetically unrelated to her being transferred to her uterus. Even in “traditional surrogacy” (also known as “genetic surrogacy”) this is not how it is done. There, the surrogate is also the egg donor, but conception is generally done through an insemination procedure — most frequently with sperm from the intended father. I have never heard of a “surrogacy” where the surrogate’s boyfriend has sexual intercourse with her in order to conceive a child for someone else. That is not a thing that is called surrogacy.
Fast forward. After a smooth pregnancy with close involvement by the intended mother, all parties were present for the biological mother giving birth. The hospital discharged the baby to the biological mother, but immediately upon exiting the hospital, the biological mother handed over the baby to the intended mother and Ms. R. However, just days after the child was brought home, Ms. R and intended mother broke up, and Ms. R exited the picture.
The day after the birth, the intended mother filed for guardianship. The parties went to court a month after the birth and a decree was entered appointing intended mother as permanent guardian. So all is well that ends well, right? No quite. More drama is in store.
Post-Birth Drama.
A few months after the birth, a clerical error caused the child to be added to the biological mother’s MassHealth insurance account and one of biological mother’s own older children to be removed. “This greatly upset the biological mother, and she sent a Facebook message to the intended mother telling her to ‘adopt’ the child immediately or ‘give him back.” [nervous emoji] Apparently, as the trial court noted in its opinion, the biological mother was indifferent as to which option.
More drama ensued as the biological parents became concerned about the intended mother’s parenting — upset that the intended mother may take the baby to a nail salon, and that intended mother had a housemate babysit the child on occasion.
Four and half months after the baby was born, the biological parents filed to terminated intended mother’s guardianship. And while the intended mother’s original social media post did not look great, at this point biological mother starts looking like the bad guy with some extreme Facebook posting talking trash about intended mother. Then, about nine months after baby’s birth, a brick was thrown through a window of intended mother’s home with a note “[H]e is mine.” “The judge drew the reasonable inference, based in part on the biological father’s snickering in response to questions regarding his aggressive behavior toward the intended mother, that the biological father was the perpetrator.”
The Ruling.
Back to the legal side. While the Court of Appeal’s started its opinion by lamenting that this “terribly unfortunate case highlights the need for legislation setting out comprehensive rules governing surrogacy and the lawfulness of, and requirements for, surrogacy arrangements and contracts.” The court ultimately found this arrangement not to be a surrogacy arrangement under state law.
The trial court determined that the biological parents’ decision to “try and get the child back ‘was just as capricious as their original decision to have him and give him away.’” The trial court ruled, and the Court of Appeals affirmed, to terminate the biological parents’ parental rights and permit adoption by the intended mother in the best interest of the child.
A Warning To All Future Intended Parents.
This is not the way to go. The judge notes that despite the ultimate outcome, this is not the way to become a parent. This arrangement led “predictably, to years of uncertainty for the biological mother, the biological father, the intended mother, and especially tragically, for the child.”
“The process used by the parties to this case was inappropriate to the gravity of … the creation of a child… . As a final note, we caution anyone considering a similarly informal surrogacy agreement that we have not held that such agreements are enforceable.”
I checked in with Massachusetts surrogacy attorney Catherine Tucker for her thoughts on the case. She explained that she was surprised that the court called out the state legislature as needing to provide guidance for these kinds of situations. “Surrogacy doesn’t and shouldn’t contemplate a situation where a woman has sex with her partner to get pregnant.” She noted that there is, in fact, proposed legislation in the state to improve the parentage code and bring greater protection for families. But that “this case would be equally legally messy under the proposed legislation in Massachusetts.”
For the sake of the children (as well as your legal certainty as a parent), please no one do this in the future.
Ellen 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 [email protected].