As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children and parental rights issues. In the March issue of the ABA Journal, Mark Hansen writes about a Minnesota surrogacy case, in which a male homosexual couple made "do it yourself" (DYI) arrangements through a surrogacy website. The surrogate was implanted with her own egg, which had been fertilized by the sperm of one of the men. Although she relinquished her parental rights en route, she changed her mind shortly after birth, giving rise to several years of litigation.
As you may recall, surrogacy first arose to popular conscience with the New Jersey story of Mary Beth Whitehead and "Baby M." Since that time, courts have generally held that a natural mother in a "traditional" surrogacy can rescind or revoke, after birth, the prior surrogate agreement to relinquish her child. For this reason, many lawyers, surrogacy agencies and prospective parents will only generally deal with non-traditional surrogacies, e.g. when the woman is merely a carrier of another woman's fertilized egg, and has no biological tie to the child, unless the surrogate is a relative or close friend. However, that obviously will not work for a male-couple, as here.
The trial court in the Minnesota case went against the grain of legal opinion, concluding that the mom here was not the natural mom and had no write to challenge the surrogate contract. That decision was reversed on appeal, but the appeals court did affirm the court's other findings that at least one of the men was also a natural parent, and that it was in the best interests of the child to remain in the custody of the male couple.
The story highlights the perils of "DIY" surrogacy, particularly in one of the many states which lack any regulation of surrogacy, because an qualified, reputable surrogacy agency will screen and educate the surrogates, and minimize these kinds of risks. The author also encourages the various states to consider enacting Article 8 of the Uniform Parentage Act, an optional portion of the uniform act, which provides greater protections to both parties in surrogacy cases.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
