Sunday, December 13, 2009

Washtenaw County Guardianship Spotlights Problematic Surrogacy Arrangements

A recent Washtenaw County Probate matter received national attention over the weekend by appearing on the front page of the Sunday NYT, in an "above-the-fold" article by Stephanie Saul.  The guardianship case involved a surrogacy contract between a Kent County couple and the surrogate mother from Ypsilanti.

Amy Kehoe and her husband contracted with both egg and sperm donors, then arranged for Laschell Baker to serve as the gestational surrogate.  The Grand Rapids couple located Baker from the surromomsonline web site.  The would-be parents also contracted for services with IVF Michigan, a fertility clinic.

Neither the Kehoes nor Ms. Baker had any legally recognized biologic connection to the babies; twins born in July.  The babies spent their first month with their would-be parents, the Kehoes, but were then removed by the surrogate's successful probate petition for temporary guardianship.

Problems arose when the Kehoes appeared in the Washtenaw Probate Court for the agreed upon guardianship transfer from the surrogate to the Kehoes.  According to the NYT, Mr. Kehoe disclosed at the hearing that his wife had been treated for a mental disorder. 

In Michigan, the Surrogate Parenting Act prohibits contracts for gestational surrogacy services in exchange for fees as void on public policy grounds.  In addition, surrogacy for profit is a five-year felony.  The Act does not create parental rights for would-be parents who arrange for the creation of a baby.

In 1992, the Michigan Court of Appeals upheld the constitutionality of the Act in the case of John Doe -v- Michigan Attorney General, holding:
As overwhelmingly repugnant as the thought may be, unbridled surrogacy for profit could encourage the treatment of babies as commodities. Whatever sense of idealism that may motivate a fertile woman into hosting a pregnancy for an infertile couple is rent asunder by the introduction of the profit motive. It could be only a matter of time before desirable, healthy babies would come to be “viewed quantitatively, as merchandise that can be acquired, at market or discount rates.” O'Brien, Commercial Conceptions: A Breeding Ground for Surrogacy, 65 NCLR 127, 144 (1986). As the New Jersey Supreme Court commented in In re Baby M, 109 N.J. 396, 440, 537 A.2d 1227 (1988): “In a civilized society, there are some things that money should not be able to buy.” In our opinion, babies ought to be one of those things.
Ohio's Ninth Appellate District, in J.F. -v- D.B., 116 Ohio St 3rd 363 (2007), discussed but declined to follow the Michigan Court of Appeal's Doe case.   To date, only California allows enforcement of surrogacy contracts where the inchoate parents have no biological connection to the baby.

In the Washtenaw County case, the surrogate mother denies there was a commercial surrogacy contract, claiming she carried the twins gratutiously, only seeking reimbursement for her medical expenses.  Ms. Kehoe disputes this, blames Michigan's poor laws on this subject, and views Ms. Baker as a child-thief.

The Washtenaw Probate case draws attention to the lack of laws or guidelines relating to custody issues for children born under such circumstances.  In this case, although neither set of competing parents had a biological connection to the child, although neither set of parents filed for adoption, the surrogate was awarded custody.  

Ms. Kehoe has stated that her health issues are under control, but can no longer afford a sustained legal challenge to the surrogate's petition for guardianship of the twins.  She also claims that lawyers have advised her that custody of the twins is unlikely.  For her part, Ms Baker asserts that she never would have agreed to be the gestational carrier had she known about Kehoe's mental health history.

The case begs the question: does a surrogate mother have parental rights superior to those of a would-be parent that contracts for the creation of an infant?  Intermediate appellate review of the Washtenaw Probate Court, or perhaps some different procedural maneuvers, could have improved Kehoe's chances for temporary guardianship and possible custody.

This issue is sure to surface repeatedly in the context of gay couples, as the battle over gay marriage is waged on a state-by-state basis.  More gay couples want to complete their families with children of their own.  Surrogacy and adoption are the primary means to this end.  For an excellent introduction on the subject of gay surrogacy agreements, view this NYT video clip.  The American Bar Association, offering assistance to state legislatures and family court judges, has published a Model Act Governing Assisted Reproductive Technology.

Updates: The NYT's Ms. Saul stays on the case, reporting on a decision issued in the New Jersey surrogacy case over the holidays.  The New Jersey family court judge ruled that the gestational surrogate was the "legal mother" thus, she had the right to challenge custody of the twin girls she delivered in 2007.  Also see Nathan Koppel's posting on the case in the WSJ's Law Blog.  Stay tuned on this one, as the trial is scheduled for this spring.

With the 21st Century marching forward, some of our more traditional institutions, i.e. "family" and "marriage", are coming under pressure to evolve; to become more inclusive and less exclusive.  Litigated surrogacy contracts are but one marker in this social evolution.

What will the definition of "Mother" be at the end of this new decade?