The New Nexus of Contracts: Assisted Reproduction

 In light of the Baby M case, we have posted before on thesubject of advanced assisted reproduction.  Sunday’s New YorkTimes had a lengthy report on page A1 about the tragically confused state ofthe law in this area.  The reportbegins with the story of  AmyKehoe, 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 ather 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 byassisted reproduction.  After hersurrogate, 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 thetwins she had carried but to whom she had no genetic link. 

A Michigan court has granted temporary custody of the twinsto Ms. Baker and her husband, who already have four children (Ms. Baker hasalso served as a surrogate mother to two other couples).  Under Michigan law, surrogacyagreements 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 tothe non-existent.  Surrogacycontracts have been upheld in California courts.  In other states, the law is silent on the subject, leavingcourts without guidance when faced with a parentage and custody dispute.  Sometimes, the transactions mightinvolve a sperm donor in one state, an egg donor in another, a surrogate in athird 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 Timesarticle illustrates the complexities with two law stories.  The first involves a single, New Jerseyman in his 60s who attempted to pick up his twins in Indiana.  While he appears to have settledmatters with the New Jersey courts, Indiana courts are still adjudicating thestatus of the twins.  FrancesWatson from the Indiana University School of Law served briefly as thechildren’s appointed legal representative.  The Times quotesher as follows: “You should not be able to come from out of state on somecontract and order up some babies and then go about your business.”

The other story involves Donald Robinson and SeanHollingsworth, a gay couple residing in New Jersey and married in California in2008.  Mr. Hollingsworth served asa sperm donor and the couple used a donated egg.  The fertilized egg was then implanted in Mr. Robinson’ssister, who was to act as surrogate and as a doting aunt.  But Ms. Robinson’s relationship withher brother unraveled during the pregnancy, which was a difficult one, which produced twins.  The court in BabyM’s state has temporarily awarded shared custody of the children, with a trialslated for April.

Help is on the way, it is to be hoped, as the ABA hasdeveloped a model surrogacy act that could provide needed guidance tocourts.   One helpfulprovision would be a requirement that all parties undergo psychologicalscreening before entering into a surrogacy agreement.  Still, one would hope that people with a history of mentalillness 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  arealready 152 comments on the New YorkTimes website, so I will refrain from piling on.

[Jeremy Telman]