R.R. v. M.H. & another

Rule of Law:

A compensated surrogate parenting agreement that requires the surrogate mother to surrender custody of the child to the biological father is unenforceable in Massachusetts as it violates public policy derived from state adoption statutes.

Facts:

• The plaintiff father and his wife were infertile and sought surrogacy services through an agency, NESPA.
• The defendant mother, who was married with two children, responded to an advertisement and applied to be a surrogate, motivated by a desire to be pregnant, earn money, and help an infertile couple.
• The father and mother executed a surrogate parenting agreement, drafted by an attorney, providing that the mother would be inseminated with the father's sperm.
• The agreement stipulated that the father would receive full custody upon the child's birth and would pay the mother $10,000 for her services.
• The contract also stated that if the mother sought custody, she would be obligated to reimburse the father for all fees and expenses paid to her.
• After a successful artificial insemination and receiving several payments from the father, the mother, during her sixth month of pregnancy, changed her mind and decided she wanted to keep the child.
• The mother returned the most recent payment check but made no attempt to refund the prior payments she had received.

Procedural Posture:

• The father filed suit against the mother in the Probate and Family Court, seeking to establish paternity and enforce the surrogacy agreement.
• The trial judge issued a preliminary order granting the father temporary custody of the child, reasoning that the father was likely to succeed on the merits of his contract claim.
• The trial judge then reported the question of the surrogacy agreement's enforceability to the appellate courts for a definitive ruling.
• The Supreme Judicial Court of Massachusetts, on its own motion, transferred the reported question and the mother's appeal to itself for direct review.