Court upholds surrogacy contracts as enforceable in Iowa
By DAVID PITT
Feb. 16, 2018
DES MOINES, Iowa (AP) — The birth mother of an 18-month-old girl, who agreed to be paid as a surrogate to have the baby, is not legally the child's parent, the Iowa Supreme Court ruled Friday in an emotional case that concluded surrogacy contracts can be enforced in Iowa.
The ruling means the girl remains with the Cedar Rapids couple, the only parents she has known since leaving the hospital after birth.
It was the first time the state's highest court has weighed whether surrogacy contracts can be enforced.
But the fight isn't over. The birth mother plans to appeal port of the decision to the U.S. Supreme Court.
"I no longer believe that surrogacy contracts should be entered into," said the woman identified in court documents only as T.B., in a statement provided by her attorney. "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. Children should not be sold."
The woman said she has taken no money for bearing the baby. The contract required her to relinquish custody and parental rights in exchange for being paid, but she said she didn't agree to do so after her relationship with the couple deteriorated. She also said she concluded that payment for babies is wrong.
Iowa, like most states, has no clear law on surrogacy parenting, but a 1989 law making it a felony to sell an individual to another person specifically exempts surrogate mother arrangements. The law was passed after the New Jersey Supreme Court invalidated surrogacy contracts as contrary to the state's "baby selling" prohibition on payment of money to adopt a child.
In that case, which received wide publicity as the Baby M case, Mary Beth Whitehead agreed to carry a baby for William and Elizabeth Stern for $10,000. The New Jersey court in invalidating the surrogacy contract awarded the Sterns custody but allowed Whitehead visitation.
The Iowa court concluded that the Iowa Legislature "tacitly approved of surrogacy arrangements by exempting them from potential criminal liability for selling children" in response to the Baby M case.
The justices concluded gestational surrogacy agreements promote families "by enabling infertile couples to raise their own children and help bring new life into this world through willing surrogate mothers."
"Banning gestational 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 court said in an opinion written by Justice Thomas Waterman.
The birth mother's attorney Harold Cassidy said the state law issues are now in the hands of the voters "through their elected legislative representatives."
The court also concluded that any constitutional right to custody, care and control of the baby belongs to the biological father as it denied the woman's constitutional arguments that her due process and equal protection rights were violated. The court said the birth mother waived her parental rights when she signed the surrogacy agreement.
Cassidy, who also represented Whitehead in the Baby M case, said those issues will be appealed because they hinge on federal constitutional issues, not state law.
The case centered on Paul and Chantele Montover, who have discussed their case publicly but are identified in court documents only as P.M. and C.M. They decided in 2016 at age 50 that they wanted to raise a child together. They couldn't have a child on their own so they advertised on Craigslist and agreed to pay a Muscatine woman who responded to the ad offering $13,000 to carry a baby for them.
The woman, identified only as T.B., was impregnated with an egg from an unknown donor and Paul Montover's sperm. She had twins prematurely on Aug. 31, 2016, but one baby died within seven days of birth.
The surviving baby became the center of a legal dispute after the relationship between the Montovers and the birth mother deteriorated and she decided she wanted to keep the infant.
The baby was 2 months old and still in the hospital being treated for issues related to her premature delivery when a judge awarded Paul Montover custody. The birth mother appealed through the courts, but the Montovers maintained custody of the child.
Casey Rigdon, the Montovers' attorney said the case clears the way for couples choosing surrogacy to be confident in that choice.
"It allows people to make decisions about how to raise a family and now people can enter these contracts without interference," he said.