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May 07, 2013

Surrogacy Agreement

Case:  In Re Baby

Facts:  The “Intended Parents” entered into a surrogacy agreement with “Surrogate.”  Before the child’s birth, a juvenile court entered a final order declaring parentage and ratifying the surrogacy agreement.  Shortly after the child’s birth, Surrogate filed motions to effectively assume parentage herself.  The juvenile court denied the motions and upheld the original order.

Appellate Decision:  The COA affirmed the juvenile court’s order in favor of the Intended Parents.  The COA (1) declined to find that surrogacy agreements violate public policy, (2) found that the juvenile court had jurisdiction over the matter because surrogacy is associated with adoption, (3) rejected Surrogate’s argument that the agreement was invalid because the statute refers to the “biological father” and his “wife,” and the Intended Parents were not married until shortly after the birth.

_ Issue:  _ Did the juvenile court correctly uphold the surrogacy agreement after the Surrogate changed her mind?

Review Granted:  May 7, 2013

Prediction:   David thinks the Supreme Court will affirm for the reasons indicated by the COA.  As the intermediate court noted, the statute left the door open for a court to review the validity of surrogacy contracts, so the Supreme Court may provide some public policy analysis on this.  Ben believes there may be a concurrence or dissent on the marriage issue which strictly construes the “biological father” and “wife” language.  The COA found that the “obvious intent is for the child to be raised in a stable, loving home by committed parents,” but it is unclear that our legislature really intended to encompass all such parents (such as gay couples).