Massachusetts does not currently have laws that can provide guidance in cases where surrogacy goes wrong. Unfortunately, it took a case of a botched surrogacy agreement to call attention to the need for the legislature to move forward with the proposals before it. The Massachusetts Parentage Act (S. 1133, H. 1714), which is based on the Uniform Parentage Act, clarifies more than just surrogacy, but begins to address many of the scenarios in modern parenting and relationships.
In the case of “Guardianship of Keanu,” a case in which an “intended parent” ended up in a dispute with a couple who conceived a child in an informal surrogacy agreement, the child could not be immediately adopted at birth, but instead the biological parents agreed to guardianship. After 6 months of guardianship, the intended mother was legally allowed to petition to adopt the child. During the pre-adoption period, a mistake in which “Keanu” was added to the biological mother’s healthcare caused the biological mother to react badly, leading the biological parents to demand the child back.
The agreement between the parents was an informal agreement made via Facebook messages. The intended parents and the biological mother hadn’t met each other in person and were only connected via the fiancée of the intended mother, who had been in 3rd grade with the biological mother. The biological mother impulsively offered to do a “good deed,” for the intended mother, saying she would carry a child for the intended mother and her fiancée and wouldn’t want any financial reimbursement. The court noted that both the child’s biological parents and the intended parent had acted irresponsibly. The child’s biological parents however, proceeded to escalate the conflict. After the birth of Keanu, both the relationship between the intended mother and fiancée and their own relationship fell apart. A brick was thrown through the intended parent’s window with a note wrapped around it saying “He’s Mine.” The judge concluded this was likely to have been the work of the biological father. In “Guardianship of Keanu,” the intended mother retained custody of the child, but only because the biological parents were deemed unfit parents.
“Guardianship of Keanu” is a cautionary tale in which the parents did not take steps to make a responsible agreement that would protect themselves and the child. However, the intended mother’s situation was not an unusual one. She and her partner were in a same-sex relationship and not able to conceive a child. The court addressed the legislature’s power “to determine whether new legal standards are required to address informal surrogacy contracts like the one at issue here, the creation from before conception of nonbiological ‘intended parents,’ and so on.”
Assisted Reproductive Technology – A Growing Area of Conflict in Family Law
Surrogacy is not governed by any written laws in Massachusetts. It is based on precedent arising out of previous surrogacy cases. This means it can be a very tricky area to navigate. Currently, the only law that deals with assisted reproductive technology in Massachusetts applies to married parents who conceived via “artificial insemination.” Given that so many parenting relationships are between unmarried parents or parents who may not be biologically related to the child, there is great potential for confusion and conflict.
In “Traditional” Surrogacy, the surrogate is related to the child and her eggs are used to create the child (pronouns will vary as some non cis-gender identifying people will choose to be surrogates). In “Gestational” surrogacy, the surrogate is not related to the child.
If they are related to the child, intended parents will be able to get a pre-birth order to adopt the child before birth. If they are not related to the child they will have to adopt the child after birth. Unmarried couples are asked to provide “voluntary acknowledgement of paternity,” after the birth of the child. Surrogacy in which the parents don’t have a biological link to the child rely on adoption. This means the biological mother cannot consent to give up her rights to the child until four days after the child is born. Surrogacy contracts may or may not be enforceable. There are huge gray areas which can make surrogacy a perilous process for the intended parents and surrogate.
In Massachusetts, there are more and more non-traditional families comprising one or several adults who care for a child and who may not be related to the child, married or have any legal status or rights of custody in relation to the child.
In the case of LGBTQ people, there may be people in same-sex marriages or relationships who have a loving parenting relationship to a child and no parenting rights. This is all well and good, until the couple break up or get a divorce. In 2021, Massachusetts recognized its first “three parent birth certificate.” Amongst other things, the Uniform Parentage Act will update the language related to families to make it more gender neutral, so it is assumed a child can have several parents, not just a married “mother and father.”
Given the complex and changing realities of Modern American families, the law in Massachusetts may be due to catch up with the many scenarios that can cause conflict and distress to families.