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P.M. v. T.B.

Supreme Court of Iowa

February 16, 2018

P.M. and C.M., Appellees,
T.B. and D.B., Appellants.

         Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.

         Surrogate 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.

          Philip J. De Koster of De Koster & De Koster, PLLC, Hull, and Kevin C. Rigdon of Howes Law Firm, P.C., Cedar Rapids, for appellees.

          WATERMAN, Justice.

         In this 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 the case.

         For the 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.

         I. Background Facts and Proceedings.

         P.M. 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.

         T.B. 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.

         T.B 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.

         The 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.

         The 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.

         T.B. 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 . . . .

         The 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.

         T.B. 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.

         On 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.[1] 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.

         Their 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!"

         A 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 to T.B.:

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.

         When 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.

         In a 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 carrier.

         On 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.

         Twin 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.

         On 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.

         On 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 testing.

         The Ms 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 Constitution.

         The 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.

         The Ms 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.

         The 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.

         After 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.

         The Bs 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.

         On 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 certificate issues.

         The Bs 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.

         The 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 certificates accordingly.

         The Bs appealed, and we retained the case.

         II. Standard of Review.

         We 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)).

         "We 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).

         III. Analysis.

         We must 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 the contract.

         A. Overview of Gestational ...

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