P.M. and C.M., Appellees,
T.B. and D.B., Appellants.
from the Iowa District Court for Linn County, Christopher L.
mother and her husband appeal rulings of district court
enforcing gestational surrogacy contract, terminating their
presumptive parental rights, and awarding legal and physical
custody of the child to the biological father.
Caitlin L. Slessor of Shuttleworth & Ingersoll, Cedar
Rapids (until withdrawal); Harold J. Cassidy of The Cassidy
Law Firm, Shrewsbury, New Jersey; and Andrew B. Howie of
Shindler, Anderson, Goplerud & Weese P.C., West Des
Moines, for appellants.
J. De Koster of De Koster & De Koster, PLLC, Hull, and
Kevin C. Rigdon of Howes Law Firm, P.C., Cedar Rapids, for
appeal, we must decide a question of first impression:
whether gestational surrogacy contracts are enforceable under
Iowa law. The plaintiffs, the intended parents, are a married
couple unable to conceive their own child. They signed a
contract with the defendants, the surrogate mother and her
husband, who, in exchange for future payments of up to $13,
000 and medical expenses, agreed to have the surrogate mother
impregnated with embryos fertilized with the
plaintiff-father's sperm and the ova (eggs) of an
anonymous donor. The defendants agreed to deliver the baby at
birth to the intended parents. The surrogate mother became
pregnant with twins, but after demanding additional payments,
refused to honor the agreement. The babies were born
prematurely, and one died. The intended parents sued to
enforce the contract and gain custody of the surviving child.
The district court, after genetic testing, ruled the contract
is enforceable, terminated the presumptive parental rights of
the surrogate mother and her husband, established paternity
in the biological father, and awarded him permanent legal and
physical custody. The defendants appealed, and we retained
reasons explained below, we affirm the rulings of the
district court. 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. 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. 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 district court
properly established paternity in the biological father based
on the undisputed DNA evidence and terminated the presumptive
parental rights of the surrogate mother and her husband. The
district court correctly awarded permanent custody of the
child to the biological, intended father.
Background Facts and Proceedings.
and C.M. were high school sweethearts but parted ways when
P.M. joined the Navy upon graduation. After marrying and
divorcing other spouses, they reconnected and married each
other in 2013. They now live in Cedar Rapids. P.M. had two
children from his first marriage, and C.M. had four children
from hers. The Ms were nearing age fifty and wanted to have a
child together. C.M. was no longer able to conceive, so the
Ms placed an advertisement on Craigslist in 2015 seeking a
woman willing to act as a surrogate mother.
and D.B. married each other in January 2009 and live in
Muscatine. T.B. has four children from a prior marriage; D.B.
has no children and had never been married. The Bs want to
have children together. In 2010, T.B. had a tubal pregnancy
which was life-threatening and incapable of leading to the
birth of a viable child, so she surgically terminated the
pregnancy. T.B. and D.B. continued to try to conceive without
success. The Bs realized they would need the services of a
reproductive endocrinologist in order to have a child. T.B.
learned that the Bs' insurance would not cover
infertility treatment or in vitro fertilization (IVF). They
decided they needed to supplement D.B.'s income to pay
for assisted reproduction procedures.
responded to the Ms' Craigslist advertisement. The four
met for dinner in Coralville and got along well at first.
They agreed that T.B. would gestate two embryos fertilized in
vitro with P.M.'s sperm and the eggs of an anonymous
donor. The Ms selected Midwest Fertility Clinic (Midwest) in
Downers Grove, Illinois, to perform the IVF and embryo
transfers. Midwest required a written contract between the
parties, so the Ms hired a lawyer to draft the agreement. Its
stated purpose was "to enable the Intended Father [P.M.]
and the Intended Mother [C.M.] to have a child who is
biologically related to one of them." In exchange for
the gestational service, the Ms agreed to pay up to $13, 000
for an IVF procedure for T.B. to enable her and D.B. to
conceive their own child. This payment was conditioned upon
T.B. surrendering custody of a live child upon birth.
The Intended Parents [the Ms] agree that after the
Gestational Carrier [T.B.] has delivered a live child
pursuant to this contract for the Intended Parents, the
Intended Parents will pay for an IVF (Invitro Fertilization)
cycle for the Gestational Carrier and her husband up to the
amount of $13, 000.
contract also provided that the Ms would pay T.B.'s
pregnancy-related medical expenses. At T.B.'s request, an
additional term was included stating that "[i]n the
event the child is miscarried or stillborn during the
pregnancy, the amount of $2, 000 will be paid to the
Gestational Carrier." The four adults signed the final
"Gestational Carrier Agreement" (the Surrogacy
Agreement) on January 5, 2016.
Surrogacy Agreement provided that T.B.
understands and agrees that in the best interest of the
child, she will not form or attempt to form a parent-child
relationship with any child or children she may carry to term
and give birth to pursuant to this agreement.
and D.B. "agree[d] to surrender custody of the child to
the Intended Parents immediately upon birth" and
"agree[d] that the Intended Parents are the parents to
be identified on the birth certificate for this child."
The Surrogacy Agreement further provided,
In the event it is required by law, the Gestational Carrier
and her husband agree to institute and cooperate in
proceedings to terminate their respective parental rights to
any child born pursuant to the terms of this agreement . . .
Surrogacy Agreement also stated that
each party has been given the opportunity to consult with an
attorney of his or her own choice concerning the terms [and]
legal significance of this agreement, and the effect it has
upon any and all interests of the parties.
and D.B. did not exercise their right to consult a lawyer
before the Surrogacy Agreement was signed by all four
parties. But each person acknowledged in writing
that he or she has carefully read and understood every word
in this agreement and its legal effect, and each party is
signing this agreement freely and voluntarily and that
neither party has any reason to believe that the other party
or parties did not understand fully the terms and effects of
this agreement, or that the other party did not freely and
voluntarily execute this agreement.
March 27, Midwest implanted two embryos into T.B.'s
uterus. The embryos were the ova of an anonymous donor
fertilized with P.M.'s sperm. On April 4, blood testing
confirmed T.B.'s pregnancy. The parties' relationship
soon began to break down over their disagreement as to
payment of medical expenses. All four attended the first
ultrasound, which D.B. videotaped. The Ms later objected to
his videotaping and to T.B. posting information about the
baby on social media.
relationship worsened after the women exchanged text messages
on April 13. They were discussing whether T.B. could attend a
doctor's appointment scheduled by the IVF coordinator
when C.M. wrote, "Well we have to go next Thursday
[because the coordinator] made the [appointment] and this is
our journey not anyone else's. She said you have to end
with [a doctor's] exam in Chicago and [a] couple more
ultrasounds . . . ." T.B. replied, "I'm not
going through this with you today. She just called me."
C.M. replied, "We are in charge we hired you so just let
us be parents and enjoy this ok!"
second ultrasound confirmed that T.B. was carrying viable
twins. T.B. shared that news with the Ms, but the
relationship remained rocky. In late April, C.M. texted this
Every time we question you or try to make a decision (as we
should be able to) we are paying you, we hired you, and we
are in charge, you get mad and upset and blow up. A carrier
shouldn't act like that as the doctors told me they
should be saying yes ma'am Whatever you guys want to do.
But you can't stand not being in charge and you have some
mental disorder for sure but yet you blame everything on us.
. . . So if you wanna say u have it bad try feeling how we
feel. This is our baby not yours and imagine how U would
feel. I know u don't care but just for a moment stop
blaming us and look what U have done to us only cuz we have
ask[ed] u to do something. Compare the two and u will see we
have NEVER did u wrong. This is a nightmare.
T.B. replied, "You're crazy, " C.M. wrote back,
"Oh really that's what everyone says about
u[.]" T.B. then stated that "everything can be
handled through attorneys from here[.]" The Bs retained
an attorney to speak for them and cut off direct
communication with the Ms, who nevertheless persisted in
trying to reach them for updates on the pregnancy.
May 20 letter from her attorney, T.B. sought more money from
the Ms beyond the $13, 000 agreed to in their contract so she
could use a costlier clinic for her own IVF. T.B. wanted to
replace Midwest because it insisted she use her own medical
insurance and because C.M. told her Midwest employees said
T.B. was crazy. The clinic T.B. wanted to use charged over
twice as much-$30, 000-for IVF. T.B. insisted that the Ms pay
the higher cost for her to continue to serve as a gestational
August 19, P.M. sent Facebook messages to D.B.'s sister,
using racial slurs and profanity to insult D.B. D.B.'s
sister shared the communication with T.B. On August 24, C.M.
sent an email to T.B. and T.B.'s attorney, triggering a
lengthy exchange, during which C.M. called T.B. the
"N" word. That statement, along with the comments
P.M. sent to D.B.'s sister, convinced T.B. that the Ms
were racist. T.B. then called the Ms' attorney. When T.B.
expressed concern that the Ms would not pay her, the Ms'
attorney assured T.B. that the money for the Bs had already
been set aside. The Ms' attorney attempted to make
payment arrangements with T.B. and arrange P.M.'s listing
on the birth certificate, but those matters remained
unresolved. Later that day, T.B. decided that she would not
turn over the babies to the Ms.
babies were born thirteen weeks prematurely on August 31.
T.B. did not tell the Ms about the birth. The babies were
placed in the neonatal intensive care unit. One died eight
days after birth. T.B. did not inform the Ms about the
baby's illness or death. The Bs unilaterally arranged for
the deceased baby's cremation.
October 24, the Ms, still unaware of the birth, filed a
petition for declaratory judgment and temporary and permanent
injunction. On October 31, the Ms filed a motion for an
emergency ex parte injunction, alleging their belief that the
babies had been born. The same day, the district court
entered an order granting a temporary injunction that ordered
T.B. and D.B. to surrender custody of "Baby H" to
the Ms. The order prohibited T.B. and D.B. from acting
inconsistently with the terms of the Surrogacy Agreement. The
Ms have had physical custody of Baby H since that date.
November 1, the Bs informed the court they would be filing an
answer and counterclaim. The next day, the hospital filed a
motion to appoint an interim medical decision-maker for Baby
H. The Ms joined the hospital's motion, arguing that
P.M., as the biological father, should make the medical
decisions. The Bs filed a resistance and cross-motion
requesting that the court vacate the October 31 injunction.
The district court conducted an emergency hearing on November
4 and ruled the temporary injunction would remain in effect.
The court appointed a guardian ad litem (GAL) to represent
Baby H's interests and to make medical decisions for the
child. The court ordered all parties to undergo genetic
filed an amended petition, requesting a declaratory judgment
enforcing the Surrogacy Agreement and a temporary and
permanent injunction barring the Bs from interfering with the
Ms' right to raise Baby H. The Ms also requested that the
court disestablish D.B.'s paternity and T.B.'s
maternity and establish P.M. as Baby H's father and C.M.
as Baby H's mother. The Bs responded by filing an answer
and counterclaim. The Bs sought a declaration that T.B. is
the biological and legal mother of the babies and that D.B.
is the legal father of the babies. The Bs also sought a
declaration that P.M. has no legal right to a relationship
with the surviving baby and that the Surrogacy Agreement is
unenforceable under Iowa law and the United States
next hearing was held on November 16. The Bs filed a request
to dissolve the temporary injunction and requested an order
awarding temporary custody of the baby during the litigation
and permanent custody to the Bs. The Ms resisted. On the same
day, the Bs filed a motion to dismiss and motion for summary
judgment. The Bs claimed T.B. was the mother of the baby and
the legal mother on the baby's birth certificate. They
supported their motion for summary judgment with expert
medical affidavits describing T.B.'s biological
connection with the child from gestating and giving birth.
The Bs argued that the Surrogacy Agreement is unenforceable
as violating the constitutional rights of T.B. and the baby
and Iowa statutes and public policy. The Bs sought permanent
physical and legal custody of the baby.
filed a notice with the results of the genetic testing, which
indicated a 99.99% probability that P.M. is the baby's
biological father, excluded D.B. as the biological father,
and excluded T.B. as the biological mother.
district court denied the Bs' motion to vacate the
injunction, which precluded the Bs from contact with the
baby. The Ms resisted the Bs' dispositive motions and
filed their own cross-motion for summary judgment, arguing
that the Surrogacy Agreement is enforceable and that Iowa law
favors biological (genetic) parents.
an evidentiary hearing on November 28, the district court
entered a ruling on December 7 denying the Bs'
application for temporary custody. At the hearing, the GAL
expressed hesitation about agreeing to a shared care
arrangement based on her inability to learn more about one of
T.B.'s children aging out of foster care and the lack of
a custodial arrangement with T.B.'s other children. The
district court concluded that P.M., as the biological father,
has the superior constitutional right to raise the baby. The
court awarded sole legal custody to P.M. pending final
resolution of the case. The court also determined this was in
the best interest of Baby H, stating,
[P.M.] is divorced from his first wife but has successfully
parented children from his prior marriage. He has a good
relationship with his minor son. He has a somewhat strained
relationship with an adult daughter. That strained
relationship is primarily a product of his divorce. [P.M.] is
gainfully employed and has stable employment. The GAL
reported that all indicators pointed toward [P.M.] being a
good, able father and a suitable parent for Baby H.
resisted the Ms' motion for summary judgment. The Bs
argued that T.B. is the biological and legal mother of Baby
H, having given birth to her. The Ms responded, arguing that
P.M. is the only genetic parent the law recognizes. The Ms
also claimed that Iowa public policy supports gestational
carrier agreements. The Ms argued that the Bs should be
estopped from stating a constitutional claim on the basis of
the emotional bond established between T.B. and Baby H
because the Bs hid the birth of Baby H from the Ms in
violation of their contract.
December 28, the Ms filed an application to establish birth
certificates. The Bs resisted the application. The court
delayed ruling on the application because dispositive motions
were pending and could impact the resolution of the birth
filed a petition for writ of certiorari or, alternatively, an
application for interlocutory review with this court. On
January 11, 2017, we denied the petition for writ of
certiorari and the application for interlocutory appeal. We
issued procedendo on January 28 directing the district court
to proceed as if there had been no appeal.
district court then issued its ruling on the dispositive
motions and on Ms' request for an order regarding the
babies' birth certificates. The court found that T.B. is
not the biological or legal mother of the babies and
that D.B. is not the legal father. The court found that P.M.
has a legal right to a relationship with Baby H and is
entitled to permanent custody. The court concluded that the
Surrogacy Agreement was enforceable as a matter of law. The
court denied the Bs' motion to dismiss and motion for
summary judgment and granted the Ms' cross-motion for
summary judgment. The court ruled that P.M. is the biological
father of the babies and directed the Iowa Department of
Public Health (DPH) to amend the babies' birth
appealed, and we retained the case.
Standard of Review.
review an order granting summary judgment for correction of
errors at law. Estate of Gray ex rel. Gray v. Baldi,
880 N.W.2d 451, 455 (Iowa 2016). "Summary judgment is
appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law." Plowman v. Fort Madison Cmty. Hosp., 896
N.W.2d 393, 398 (Iowa 2017) (quoting Barker v.
Capotosto, 875 N.W.2d 157, 161 (Iowa 2016)). "We .
. . view the record in the light most favorable to the
nonmoving party and will grant that party all reasonable
inferences that can be drawn from the record."
Id. (quoting Baldi, 880 N.W.2d at 455).
"Summary judgment is appropriate if the only conflict
concerns the legal consequences of undisputed facts."
Id. (quoting Peppmeier v. Murphy, 708
N.W.2d 57, 58 (Iowa 2005)).
generally review . . . termination of parental rights
proceedings de novo." In re J.C., 857 N.W.2d
495, 500 (Iowa 2014). But our review of issues of statutory
interpretation on parental rights is for correction of errors
at law. Id. "Our review of constitutional
claims is de novo." Callender v. Skiles, 591
N.W.2d 182, 185 (Iowa 1999).
decide whether the district court erred by enforcing the
gestational surrogacy contract, terminating the presumptive
parental rights of the surrogate mother and her husband, and
placing permanent custody of Baby H with the biological
father. We begin with an overview of the law governing
gestational surrogacy arrangements. We next determine whether
this gestational surrogacy contract is enforceable under Iowa
law. We then address the respective legal rights of the
parties. We conclude the district court correctly enforced
Overview of Gestational ...