Contracts

Extreme Surrogacy Nightmare Heads To Iowa Supreme Court

A cautionary tale.

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The latest surrogacy-gone-wrong case is the stuff of every intended parent’s nightmare.  The Montovers— a couple in Iowa who married later in life—nevertheless wished to have a child together. Unable to conceive and carry on their own, they turned to an anonymous egg donor and, separately, a gestational carrier (what we all know as a surrogate).  Unfortunately, what followed may be one of the worst cases out there on a surrogacy relationship breaking down.  And there are plenty of lessons to go around.

Do Not Use Craigslist To Have A Baby.  The Montovers chose to forgo using an agency.  Instead, they hoped to find someone on their own.  They posted an ad for a surrogate on Craigslist (among other sites) and one woman reached out to them, offering to take them up on their offer.  She asked the Montovers to pay for her to go through an IVF cycle, at the same clinic and cost of their own cycle—a cost of $13,000.  The Montovers accepted the surrogate’s offer and entered into a gestational carrier agreement with her.

Shortly after the embryo transfer, the Montovers and the surrogate attended the 8-week ultrasound together.  They received the good news! At least one fetus was thriving, and there was even a possibility that the surrogate was carrying two babies.  Amazingly, things seemed like they might work out at first.  But you know that the story wouldn’t be in this column if everything had just gone as planned.

Unfortunately, the surrogate increased her request for compensation from $13,000 to $30,000.  That’s a hefty jump!  Worse, the surrogate indicated that she may abort the pregnancy, or give the children away if the Montovers did not comply with her demand for more money.   Obviously, the relationship between the parties quickly fell apart, and the Montovers never saw another ultrasound.

As an aside, I must point out that a disproportionate number of the baby-making tragedies I see start the same way … with Craigslist. By all means, find your apartment of used furniture on Craiglist.  You can get some great deals! But please, refrain from using the site when it comes to procreating. Well, at least the type of procreation involving non-traditional methods.

Allegations of Racism.  The surrogate now contends that the Montovers made racists remarks to her and her sister-in-law in the course of their relationship.  She even says that they used the “N” word. The Montovers are Caucasian, while the surrogate is African American. According to court documents, the surrogate concluded that she could not let the babies (spoiler alert, the surrogate was, indeed, carrying twins) be raised by racists.  She cut off contact with the Montovers and determined that she would keep the babies for herself.

Lack of Communication.  The surrogate went into labor prematurely.  At this point, having cut off all contact, she did not inform the Montovers of the birth of the babies.  Nor did she inform the Montovers when one of the babies, little Baby K, tragically died eight days after birth.  The surrogate even made the decision to have Baby K’s remains cremated. The Montovers noted that cremation would not have been their wish for their baby’s remains.  The other twin, Baby H, survived and is thriving. But custody and parentage is at the heart of this legal battle.

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The Montovers brought a legal action to seek to enforce the contract; and immediately after learning of Baby H’s birth and survival, amended to request custody. The trial court ruled in their favor, and enforced the surrogacy agreement giving the Montovers parental rights. But the surrogate appealed directly to the Iowa Supreme Court (because in Iowa you can skip those pesky intermediary courts – although the Supreme Court then determines what to hear itself and what to send to the Court of Appeals).

The Surrogate’s Attorney May Sounds Familiar.  Among the surrogate’s attorneys, a familiar name pops up among assisted reproductive technology (ART) law practitioners:  Harold Cassidy. Cassidy is the attorney who represented the surrogate in the famous Baby M case.  That 1987 case involved a “traditional” surrogacy in New Jersey, where the surrogate changed her mind about the arrangement and kidnapped the baby.

Cassidy also represented the surrogate in the California triplets case I wrote about last year.  There, a surrogate fought for parental rights of the triplets she carried based on the intended father’s request to reduce the pregnancy from three fetuses to two.  The surrogate lost that case, and the intended father kept the triplets. Cassidy has repeatedly argued before courts that enforcing surrogacy agreements over the objections of the birth-mother surrogate violates the US constitution.

Is Surrogacy Unconstitutional?  Cassidy argues that a court’s enforcement of a surrogacy contract violates the Fourteenth Amendment rights of the surrogate, and also of the surrogate-born child. He argues that the violation is three-fold: (1) that the baby has a fundamental liberty interest in a parent-child relationship with the surrogate; (2) the baby has a fundamental liberty interest in being free from commodification; and (3) the surrogate has a fundamental liberty interest in not being exploited.

The Iowan lower court summarily dismissed each of these contentions, noting that (1) since the surrogate is not the rightful, legal parent of the child, there is no parent-child relationship between the surrogate and child to protect; (2) the baby is not being commodified by a surrogacy arrangement; and (3) the surrogate is not being exploited – she was a willful and free participant in the arrangement to offer her services to help others have a child.

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The attorneys for the Montovers — Philip J. De Koster and Casey Rigdon — are optimistic about the pending Iowa Supreme Court appeal.  They believe gestational surrogacy contracts are, indeed, enforceable under Iowa law and the US constitution and believe that the asserted constitutional challenges are insufficient to void such a contract.

With any luck, the Montovers will soon be raising their daughter in peace.  And hopefully, prospective parents can avoid the same tragedy, and learn a few things from the Montovers’ mistakes.  Unfortunately, other intended parents must keep their fingers crossed that they never show up on Cassidy’s anti-surrogacy-crusading radar.

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