In re the PATERNITY AND CUSTODY OF BABY BOY A.,
2007 WL 4304448 (Minn. App.)
This case involves the disputed parentage and custody of a child born using in vitro fertilization and gestational surrogacy.
Respondent P.G.M. is a 38-year-old attorney, who lives in New York City. Raised in a large family, P.G.M. wanted to have a child. As a gay man with HIV, he believed that the only method to produce a genetically related child was by using in vitro fertilization and a gestational surrogate. After one of his doctors expressed a preference for a biologically related gestational surrogate, P.G.M. called his sister Mary during the spring of 2004 to ask if she would serve that function. Mary declined, but she told appellant J.M.A., Mary's daughter and a student in Minnesota, about her conversation with P.G.M. J.M.A. made an unsolicited call to P.G .M. and offered to act as his gestational surrogate.
P.G.M. accepted J.M.A.'s oral offer to act as his gestational surrogate. On December 2, 2004, P.G .M. signed a gestational-surrogacy agreement (GSA) that he had drafted to memorialize the parties' agreement, using sample GSAs that he had found on the Internet as a guide. The GSA provides that it is to be governed by Illinois law and contains the core terms of the agreement, specifically, that J.M.A. would carry P.G.M.'s genetic child, give birth to the child, and disclaim any right to the child. It also contains P.G.M.'s agreement, in return, to pay all of J.M.A.'s unreimbursed and incidental expenses associated with the surrogacy. The GSA also included disclosures about P.G.M.'s HIV, the “sperm-washing” process,FN2 and this declaration of intent:
FN2. Sperm-washing cleanses the seminal fluid surrounding the donor's sperm and replaces it with a sterile solution. The district court found that sperm-washing minimizes the likelihood of the transmission of HIV to the gestational surrogate.
I, [J.M.A.] hereby acknowledge that I have agreed to carry and give birth to a child conceived via in vitro fertilization through the union of an anonymous donor's ovum/ova and [P.G.M.'s] sperm, so that [P.G.M.] may have a child genetically related to him. I have no intention of having physical or legal custody or any parental rights, duties or obligations with respect to any child born of this gestational surrogacy process. Rather it is my intention that the genetic and intended parent, [P.G.M.], shall exclusively have such custody and all parental rights, duties and obligations.
In mid-December 2004, approximately a month after receiving a copy of the agreement, J.M.A. signed it after declining P.G.M.'s offer to have independent legal counsel review the document at P.G.M.'s expense. As part of an oral modification of the agreement, P.G.M. agreed to pay J.M.A. a $20,000 fee for her services as a gestational surrogate. P.G.M. delivered a check for $20,000 to J.M.A. at the end of December 2004.
In early 2005, the parties traveled to an Illinois medical facility specializing in sperm-washing and in-vitro fertilization, and they signed in Illinois numerous releases and disclosures that the facility required in order to perform the procedure. On April 12, 2005, in vitro fertilization specialists in Illinois fertilized an egg from an anonymous donor with P.G.M.'s sperm and implanted the fertilized egg into J.M.A.
At some point , the parties had a falling out. Soon thereafter, J.M.A. demanded that P.G.M. pay her an additional $120,000, and threatened to abort the child if P.G.M. did not meet her demands.
In early December 2005, J.M.A. drafted a new GSA, which provided for additional compensation for transportation, medical, and psychological services. P.G.M. did not sign the revised GSA. On December 17, 2005, J.M.A. gave birth to the child in Minnesota. She named the child and did not tell P.G.M. about the child's birth, his name, or his whereabouts.
After learning about the child's birth from his sister, P.G.M. filed this paternity action on December 19, 2005. The district court immediately appointed an attorney for J.M.A. from the office of the Hennepin County Public Defender. At the direction of the district court, Hennepin County Court Services interviewed both parties and filed a report that recommended that P.G.M. have temporary custody of the child. That report also noted that P.G.M. had a strong emotional attachment to the child but that J.M.A. was motivated in large part by the prospect of financial gain.
A trial was held at which the district court heard extensive testimony and considered numerous exhibits. The district court issued its paternity findings of fact and conclusions of law on August 18, 2006, concluding that, under the Illinois Parentage Act, P.G.M. was the child's father and denying J.M.A. parental rights. The district court denied J.M.A.'s motion for a new trial, and she now appeals.
DECISION
. . .
II. The gestational-surrogacy agreement is legally enforceable .
We next review J.M.A.'s challenge to the district court's determination that the GSA is legally enforceable. She cites three reasons in support of her claim that it is unenforceable: (1) the GSA does not reflect the parties' actual agreement, (2) P.G.M. coerced J.M.A. to sign the GSA, and (3) the GSA contravenes the public policy of the state of Minnesota. We will address these arguments in turn.
The GSA is a valid contract and expresses the agreement of the parties.
The existence, terms, and construction of a contract are questions of fact “to be determined by the factfinder.”We will not reverse a district court's fact findings unless they are manifestly contrary to the evidence and are without reasonable evidentiary support.
In Illinois, as in Minnesota, a valid contract requires an offer, acceptance, and consideration. Here, the record contains significant evidence to support the district court's finding that J.M.A. and P.G.M. entered into a written contract and orally modified that contract. The record supports the district court's finding that J.M.A. offered and P.G.M. accepted J.M.A.'s offer to serve as a gestational surrogate for P.G.M.'s child. P.G.M. then drafted-and J.M.A. signed-a GSA to memorialize the agreement. In consideration for acting as P.G.M.'s gestational surrogate, the GSA provides that P.G.M. will pay all of J.M.A.'s unreimbursed medical costs associated with the surrogacy.
The record contains ample evidence to support the district court's finding that the parties have an enforceable agreement that expresses the “true agreement” of the parties.
J.M.A. was not coerced into signing the agreement.
J.M.A. argues next that the district court erred by enforcing the agreement because J.M.A. signed it under “psychological, emotional, and financial” coercion. The existence of coercion is a question of fact..
The record supports the district court's finding that J.M.A. was not coerced into serving as P.G.M.'s gestational surrogate. P.G.M. initially contacted J.M.A.'s mother, Mary, in March 2004 regarding whether Mary would be willing to carry his child. Mary declined the offer, but she told her daughter (J.M.A.) about P.G.M.'s inquiry. Unsolicited, J.M.A. then contacted P.G.M. about serving as his gestational surrogate. The district court found that three primary factors motivated J.M.A.: (1) her “attitudinal predisposition to help others”; (2) her “general desire to help” P.G.M.; and (3) the prospect “of receiving, what was to her, ... a large sum of money.”
At the time of J.M.A.'s initial offer, she was pregnant with her own child. P.G.M. knew that, declined J.M.A.'s offer, and “encouraged [J.M.A.] to focus on her own pregnancy before she committed to acting as his gestational surrogate.”Throughout the summer of 2004, the parties discussed the process over the phone and by e-mail. And the district court found that P.G.M. invited J.M.A. to discuss the process with “the attending fertility physicians who were to perform the sperm washing and/or embryo transfer.” After modifying a GSA he found on the Internet, P.G.M. sent the agreement to J.M.A. for her review and signature. An e-mail message accompanied the GSA, which provided, in relevant part:
[A]nyway, I hope this is simple and very straightforward but of course I want you to feel free to talk to me or another lawyer (I'd be happy to pay the fee) if there is anything about this agreement which you want to discuss further. [A]s we've discussed, I would be happy to make the payment we've discussed at the outset, before you sign the agreement, rather than by the more traditional method of staggered payments.
The district court found that J.M.A. did not “avail herself of the opportunity to consult separate counsel on her own behalf at [P.G.M.'s] expense.” The district court also found that the parties did not meet face-to-face and that P.G.M. did not provide J.M.A. with legal advice. Finally, the district court cited family testimony and psychological evidence describing J.M.A. as “independent and strong willed” and having “no problem ... protecting her rights.””Because the record supports the district court's findings, they are not manifestly contrary to the evidence.
The agreement does not violate the public policy of Minnesota.
J.M.A. argues that the district court erred by giving any effect to the GSA because there is “no statutory or case law authority under Minnesota law which sanctions the determination of a child's parentage and custody pursuant to a private contract.”But as noted above, there is no Minnesota statute or caselaw that prohibits GSAs. And the legislature has expressly protected the rights of individuals who use assisted-reproduction technologies..
Next, J.M.A. appears to argue that a district court violates the public policy of Minnesota by enforcing a GSA if the district court relies on genetics alone. But J.M.A. cites no authority for this proposition. And the district court did not, in any event, rely exclusively on genetic testing to determine the parentage of the child. The district court considered other evidence, including the GSA, the testimony of the parties, and the testimony of the doctor who performed the embryo transfer, to determine the child's parentage.
To the extent that J.M.A. argues that proof of giving birth to the child is the exclusive manner by which to establish the maternity, J.M.A.'s argument also fails. Although that statute provides that maternity may be established by “proof of [the biological mother] having given birth to the child,”, it also provides other methods to establish the mother-child relationship. See id. (providing that the mother-child relationship may also be established by the Parentage Act, the voluntary recognition of the parties, or proof of adoption)
J.M.A. also cites a statute that voids any transfer of a child from a parent to another individual, other than by the adoption process or by a consent decree That provision provides only that “no parent may assign or otherwise transfer to another parental rights or duties with respect to the permanent care and custody of a child under 14 years of age.”Id.). But because that provision does not define “parent,” the statute does not prohibit a gestational surrogate from carrying a genetically unrelated child and transferring the child to the child's biological parent upon birth.
Because there is no Minnesota legislative or judicial pronouncement that prohibits such agreements, we conclude that GSAs do not violate any articulated public policy of this state. By this opinion, however, we neither condemn nor condone gestational surrogacy. That is not our function. But a child has been born in this state as the result of the procedure, and the judiciary has been asked to determine the child's parentage and custody. That is our function.
III. The district court did not err in its application of Illinois law.
J.M.A. argues that even if the Illinois Parentage Act (IPA) governs parentage here, the district court erred in its application of the IPA because P.G.M. “did not comply with” the provisions of the Act. We see no error.
The IPA sets forth a procedure to determine parentage by the voluntary consent of the parties. See750 Ill. Comp. Stat. 45/6(a)(1) (2006) (authorizing consent agreements provided that the parties certify that they have met a series of requirements before the child's birth). The parties do not dispute that the GSA did not satisfy all of the statutory requirements for a consensual parentage determination. But failing to comply with the statutory provision does not invalidate the contract. Nor does it foreclose the district court from analyzing the child's parentage and custody in accordance with the law of the state chosen by the parties to govern those determinations, here, Illinois. Therefore, the district court correctly looked to the IPA's next subsection, which creates a rebuttable presumption of J.M.A.'s parentage. That subsection provides:
Unless otherwise determined by order of the Circuit Court, the child shall be presumed to be the child of the gestational surrogate and of the gestational surrogate's husband, if any, if all requirements of subdivision (a)(1) are not met prior to the birth of the child. This presumption may be rebutted by clear and convincing evidence.
Thus, the district court properly determined that J.M.A. was the child's presumptive mother and that P.G.M. could rebut that presumption by showing that J.M.A. was not the child's mother by clear-and-convincing evidence.
We agree with the district court that there is clear-and-convincing evidence rebutting the presumption that J.M.A. is the child's mother. We agree with the district court that P.G.M. could overcome J.M.A.'s presumptive parentage by “meeting the substantive requirements of 750 Ill. Comp. Stat. 45/6(a)(1)(A-F)... [and by using] genetic testing to support his position.”The evidence supports the district court's findings that (1) J.M.A. admitted, and genetic testing confirmed, that she is not the child's biological mother; (2) the child was conceived by using an anonymous egg donor; (3) DNA testing established that there is a 99.99% probability that P.G.M. is the child's biological father; (4) Dr. Seth Levrant performed the embryo transfer that resulted in J.M.A.'s gestational surrogacy; and (5) the parties intended to enter into an agreement that complied with the relevant Illinois statutes. The district court did not err, therefore, when it analyzed the child's parentage under the IPA, and, in doing so, concluded that P.G.M. had rebutted J.M.A.'s presumptive parentage.