The New Nexus of Contracts: Assisted Reproduction

 In light of the Baby M case, we have posted before on the subject of advanced assisted reproduction.  Sunday’s New York Times had a lengthy report on page A1 about the tragically confused state of the law in this area.  The report begins with the story of  Amy Kehoe, who has clearly adopted the nexus of contracts approach to reproduction:

“We paid for the egg, the sperm, the in vitro fertilization,” Ms. Kehoe said as she showed off baby pictures at her home near Grand Rapids, Mich. “They wouldn’t be here if it weren’t for us.”

Ms. Kehoe’s story highlights the difficult issues raised by assisted reproduction.  After her surrogate, Laschell Baker, whose medical bills related to the pregnancy Ms. Kehoe covered, learned that Ms. Kehoe had a history of paranoid schizophrenia, Baker demanded the return of the twins she had carried but to whom she had no genetic link. 

A Michigan court has granted temporary custody of the twins to Ms. Baker and her husband, who already have four children (Ms. Baker has also served as a surrogate mother to two other couples).  Under Michigan law, surrogacy agreements are unenforceable on public policy grounds.  The Kehoes have abandoned their attempts to get custody of the babies, citing the difficulty of the task under Michigan law.

 Applicable law in other states ranges from the permissive to the non-existent.  Surrogacy contracts have been upheld in California courts.  In other states, the law is silent on the subject, leaving courts without guidance when faced with a parentage and custody dispute.  Sometimes, the transactions might involve a sperm donor in one state, an egg donor in another, a surrogate in a third and an adopting couple in a fourth.  The IVF clinic might bring in a fifth state.  The jurisdictional issues alone raise significant challenges. 

The New York Times article illustrates the complexities with two law stories.  The first involves a single, New Jersey man in his 60s who attempted to pick up his twins in Indiana.  While he appears to have settled matters with the New Jersey courts, Indiana courts are still adjudicating the status of the twins.  Frances Watson from the Indiana University School of Law served briefly as the children’s appointed legal representative.  The Times quotes her as follows: “You should not be able to come from out of state on some contract and order up some babies and then go about your business.”

The other story involves Donald Robinson and Sean Hollingsworth, a gay couple residing in New Jersey and married in California in 2008.  Mr. Hollingsworth served as a sperm donor and the couple used a donated egg.  The fertilized egg was then implanted in Mr. Robinson’s sister, who was to act as surrogate and as a doting aunt.  But Ms. Robinson’s relationship with her brother unraveled during the pregnancy, which was a difficult one, which produced twins.  The court in Baby M’s state has temporarily awarded shared custody of the children, with a trial slated for April.

Help is on the way, it is to be hoped, as the ABA has developed a model surrogacy act that could provide needed guidance to courts.   One helpful provision would be a requirement that all parties undergo psychological screening before entering into a surrogacy agreement.  Still, one would hope that people with a history of mental illness would not be legally precluded from entering into surrogacy agreements, assuming full disclosure and a willing partner.  We do not want the law to be in the position of determining ex ante who has a right to be a parent 

There  are already 152 comments on the New York Times website, so I will refrain from piling on.

[Jeremy Telman]