When Good Intentions Go Bad....
When Good Intentions Go Bad, An Intended Parent's Worst Nightmare
It was Friday afternoon and I just had a call that a Client's Gestational Carrier was giving birth. Under Florida Statute 742.13(5) the "Gestational Carrier" contracted to become pregnant through assisted reproductive technology where my Client's eggs, mixed with sperm in vitro, were permitted to mature and the resulting preembryo was then transferred to the Carrier's uterus. This Carrier was giving birth to a child genetically related to my Client, not herself.
The referenced couple came to me during the last trimester of their pregnancy. I met with the wife, reviewed the Gestational Surrogacy Agreement and determined that it failed to conform to Florida Law. As I could cure the defects through affidavits, I took on the representation solely to walk the paperwork through court and obtain an order affirming parental status.
The referenced Friday call was followed up with a second, frantic conversation just minutes later. I was advised that the Carrier decided to keep the baby. My responsive telephone call to hospital risk management revealed that this particular hospital never facilitated a gestational surrogacy before. Further, was the pronouncement that they would not recognize the Surrogacy Agreement and thus would escort the Carrier from the hospital with my Client's genetic baby.
Luckily, I got the hospital's attorney moments before his leaving for the weekend and who requested his client place a hold on the baby. Four days later we began a legal exercise in contractual and statutory interpretation. Suffice it to say that the baby was ordered into protective custody with the hospital. Genetic testing was ordered and trial was set to determine the intention of the parties to the gestational surrogacy contract. This case study will point out some of the pertinent aspects of the litigation and necessarily ignores or minimizes some aspects of the matter.
It is my belief this was a case of first impression in Florida.What scared me most was an environment of legislative conservatism especially when dealing with reproductive rights. Clearly, I would be vilified if part or parts of Chapter 742 were overturned through my efforts.
With respect to surrogacy, I believe Florida has an edge over most states because of its statutory design. The legislative history of Chapter 742 of the Florida Statutes states in pertinent part that if there is no genetic connection between baby and birth mother, the adoption statutes do not apply. Thus, this new statutory scheme would provide a streamlined procedure to determine legal parentage. Important to the success of my position in this litigation was the pronouncement by the promulgators that a contract breach does not imply a loss of parental rights. In addition to the legislative history, and as there being no reported decisions in Florida, I would rely on California and New York case law for guidance in this surrogacy litigation.
Prehearing, I learned the following facts. First, the agreement was obtained from a California surrogacy website not a California attorney and, without any attorney oversight. Second, my Client signed the medical consents and the surrogacy agreement for both she and her husband. Third, my Client's husband allegedly admitted to the carrier that he did not intend his wife to participate in the surrogacy. Finally, the Hospital asserted a lien which would tick every day baby was under lock down.
In her attempt to keep the child, the gestational carrier raised several arguments. First, that the contract was void as the intended father's signature was forged. Second, that the intended mother breached the contract for her failure to pay. Third, that if there was only one intended parent, the Department of Vital Statistics would not issue a birth certificate under the gestational surrogacy statutes.
Addressing the void contract claim, I raised the point that there were no criminal charges of forgery. At worst, as the family had a history of signing each other's names, my Client signed without authorization and any harm was not transmitted to the Carrier. More to the point, even if the contract was void, the underlying intentions would still apply to the conduct of the parties.
In the Matter of John Doe, Settlor, 2005 NYSlipOp 25025, the Court was asked to provide trust benefits to post-death surrogacy twins. New York does not recognize surrogate parenting agreements and deems them void and unenforceable, thus my interest in the language. The Court noted that it was the rights of the twins born from the agreement which were under consideration, not the validity of that agreement.
Clearly the Carrier was seeking a determination of her right to keep a non-genetic child in the context of a voided surrogacy agreement. We argued that the proper determination was the right of a child to be with her genetic parents. As the Carrier admitted she would ultimately give the child up for adoption and as the Intended Father affirmed his role as a party to the Agreement, the judge found for the Intended Parents on that count.
The Carrier next argued that as the Intended Parents failed to make certain compensation payments to her, the gestational carrier agreement was breached for which the remedy was to award her the child.
In Johnson v. Calvert (1993) 5 Cal.4th 84, a California court was asked to fashion a remedy when a gestational surrogate threatened to not turn the baby over to the intended parents when they failed to pay the balance of the promised compensation. It was undisputed who gave birth and who was the genetic mother. Thus there were two potential sources of maternal rights; genetic consanguinity and delivery. The California court concluded that when the two sources of establishing a mother-child relationship do not coincide with one woman, "she who intended to bring about the birth of a child that she intends to raise as her own is the natural mother."
In our case, the evidence, through the Gestational Carrier Agreement and by testimony, showed a clear intention that the pre-embryos were not donated to the Carrier, custody was transferred to her only for the duration of the pregnancy. Further, the Intended Mother never relinquished her intent to raise the child as her own. The Court found for the Intended Parents on that count.
The Carrier's final argument was that the child's parentage had to be addressed through Florida Statutes, Chapter 63, as an adoption because the Intended Father was not a party to the Agreement. The reasoning offered was that Florida Statutes, Chapter 742 is framed in context of "Commissioning Couple" not Commissioning Parent, therefore the child's disposition could not be governed by the gestational surrogacy statutes. The rationale was that Vital Statistics could not issue a birth certificate under authority of Florida Statute 742.16(8) where the court was authorized to " ... enter an order requiring the Department of Health to issue a new birth certificate naming the commissioning couple as parents ...", but not to a commissioning parent.
In Buzzanca v. Buzzanca, 61 Cal.App. 4Th 1410 (1998), a gestational surrogacy with donor embryo resulted in a birth after which the intended father attempted to disclaim paternity. The trial court determined that the intended parents were not the infant's legal parents and the child would become a ward of the state to be adopted out. The Appeals Court noted that delegating parental responsibility through financial support obligations made the establishment of legal parenthood clear public policy. The so-called "adoption default" model which formed the basis for the trial court ruling was determined to be inconsistent with public policy. Thus, the Court concluded, the intended father could not escape his legal relationship to the child.
This case mirrored an observation offered early in the litigation by our Judge. Specifically, he asked if it made any sense to judicially create a class of children who were parentless and thus wards of the State. After all, he continued, children are born to single parents daily and Vital Statistics issues birth certificates to each and every one of them. The judge finished by stating that Vital Statistics would not be permitted to reject its administrative responsibilities merely because this child was born to through a surrogacy.
Based upon the evidence and authorities presented, the Court ordered a birth certificate be issued, listing my Clients as the natural parents. The Baby was released from hospital custody after 40 days and is healthy, happy and thriving. Ultimately, we made arrangements for and paid the hospital bill through the Intended Parent's insurance.
This case study illustrates the pitfall of accepting a client on the cusp of an important event. Good intentions aside, the short timeline forced me to abandon my usual administration of a gestational surrogacy. In particular, I point out a reasonable course of conduct.
First, the gestational surrogacy agreement needs be drafted, proofed and administered by an attorney who has expertise in the area. Implicit is that the agreement must reflect not only the intentions of the parties, but also Florida statutory requirements, lessons learned from sister-state case law and from our respective professional experiences.
Second, all signatures need be witnessed and notarized to provide the attorneys, the court and all parties notice that everyone is at the table voluntarily and knowingly.
Third, all parties need to be represented by independent attorneys to provide the appropriate ethical distance between the parties and secure assurances that they understand their respective promises and legal rights.
Fourth, the intended parent's attorney needs to meet with the risk manager and or nurse administrator of the obstetric floor, no later than the beginning of the third trimester so as to introduce him or herself, to ascertain the hospital's understanding of the legal side of surrogacy and how they will administer the birth process for the parties and, when requested, to deliver a gestational surrogacy agreement for inclusion into the medical record.
Fifth, it is inevitable over the course of a pregnancy that the relationship between Intended Parent and Carrier will wax and wane. I believe it paramount that financial considerations never enter their relationship and minimize such confounders by removing them to a trust account. Further, as I feel there to be an inherent conflict of interest to administer the trust account while representing one of the parties, I always have a third party handle that side of the transaction.
Finally, I address what I consider the instigation to this whole piece of litigation, a faulty informed consent process. While meeting with the Reproductive Endocrinologist for my Clients, I discovered that their standard practice was to deliver the physical informed consent to the Intended Mom, who in turn obtained her partner's signature. I believe that if Intended Father presented himself during the informed consent process, the dynamic which lead to the forgery claim would have dissipated. Currently, the Endocrinologist requires both intended parents present themselves for the consenting process.
Robert T. Terenzio, an Orlando attorney, limits his practice to Assisted Reproductive Law where he represents local or international persons needing or acting as gestational carriers, sperm donors or oocyte donors. He is a member of the Health Law Section of the Florida Bar. Mr. Terenzio also volunteers with local, civic non-profit organizations, as a Board member and past Chair of The Central Florida Performing Arts Alliance and as a Board member of Voci, Inc.