DES MOINES, Iowa (CN) – The Iowa Supreme Court ruled unanimously that surrogacy contracts are legal in the Hawkeye State, rejecting a challenge from a woman who carried a child to birth and then sued to keep custody.
In a ruling issued Friday, the state’s high court said banning surrogacy contracts “would deprive infertile couples of perhaps the only way to raise their own biological children and would limit the contractual rights of willing surrogates.”
The surrogate mother said she will appeal the decision to the U.S. Supreme Court.
A Cedar Rapids couple, identified in court documents as P.M. and C.M., entered into the surrogacy contract with a woman identified as T.B., using anonymously donated female eggs fertilized by P.M.’s sperm.
T.B. gave birth to twins 13 weeks prematurely and one died.
She did not inform the intended parents of the births and, after bonding with the surviving infant, changed her mind and launched a legal battle to retain custody.
T.B. argued, among other things, that she is the biological mother, the surrogacy contract was not valid under Iowa law and such agreements are not good public policy.
The Iowa Supreme Court, in a 7-0 decision written by Justice Thomas Waterman, disagreed.
The court held that T.B. is not the genetic mother and that surrogacy contracts, while not explicitly provided for under Iowa law, are not precluded.
“We hold this gestational surrogacy contract is legally enforceable in favor of the intended, biological father against a surrogate mother and her husband who are not the child’s genetic parents,” Waterman wrote.
“The intended parents would not have entrusted their embryos to the surrogate mother, and this child would not have been born, without their reliance on the surrogate’s contractual commitment,” the ruling states. “A contrary holding invalidating surrogacy contracts would deprive infertile couples of the opportunity to raise their own biological children and would limit the personal autonomy of women willing to serve as surrogates to carry and deliver a baby to be raised by other loving parents.”
The 18-month-old girl at the center of the dispute has been with P.M. and C.M. since October 2016, when the district court granted them an injunction against T.B.
Casey Rigdon of the Howes Law Firm in Cedar Rapids, who represented the intended parents, said the ruling is “an important decision in the sense that it substantially clarifies the law that a surrogacy contract is enforceable.
“We’re just happy for our client that there is no need for further action at the district court,” Rigdon said.
The surrogate mother’s attorney, Harold Cassidy of Shrewsbury, N.J, said in a statement that he and his client were disappointed in the decision and she has authorized an appeal to the U.S. Supreme Court.
Cassidy’s statement said in part that the ruling raises more questions than the court answered.
“The people of Iowa must now decide if they want to endorse arrangements which deliberately plan to deprive a child of the mother who carries her; whether they will destroy the essential role of pregnancy, where the mother and child bond, which forms the basis for a life-long loving relationship; whether children will be treated as mere commodities to be purchased; whether they want to create a class of women to be exploited as if they were inanimate objects or breeding animals; and whether they want to irrevocably alter the family and forever destroy the rights of children to get to know, love, and have a relationship with both mother and father,” he said.
T.B. said in her own statement that the intended parents “spoke in harsh and hateful ways” and she “had a moral obligation to the children to do what was best for them.”
“When the stress of the circumstance forced a very premature birth, I knew we would end up in court, but I had to focus on the treatment, operations and well-being of the children,” she said. “I no longer believe that surrogacy contracts should be entered into. Every child should have a mother and an essential part of the mother-child relationship is the role of pregnancy and the bonding that takes place during it.”
Most states do not have specific statutes addressing surrogacy contracts, and state courts have ruled both ways, Justice Waterman wrote.
California, Ohio and Wisconsin courts have recognized such contracts, while New Jersey does not, in the absence of a state law.
The only reference in Iowa law to surrogacy is a 1989 statute that makes it a felony to sell a child, which was enacted one year after the famous New Jersey “Baby M” case, in which a surrogate whisked her biological child out of state. A New Jersey court eventually voided the contract that stripped away her custody rights, in the first decision of its kind.
Addressing the 1989 statute in Friday’s ruling, the Iowa Supreme Court said the Legislature “tacitly approved of surrogacy arrangements by exempting them from potential criminal liability for selling children.”
The court said the payment made as part of the surrogacy agreement in this case was made for “gestational services,” not to purchase the baby.
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