California egg toss: the high costs of avoiding unenforceable surrogacy contracts.

• Author: Jackson, Jennifer

1. INTRODUCTION

   In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both "gestational carrier surrogacy" contracts and "traditional surrogacy" contracts. (2) However, this paper focuses on the differences between these contracts using case law. (3) Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. (4) Cases such as Johnson v. Calvert (5) and In re Marriage of Moschetta (6) provide a clear distinction between these contracts. (7) This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and peace of mind to intended parents. (8)

   After multiple miscarriages, Debbe and John looked into adoption as an alternative to starting a family. (9) The couple met many obstacles in the adoption process. (10) Debbe researched alternatives when she discovered traditional surrogacy. (11) The couple realized this was a viable option and quickly found a willing surrogate, Valerie. (12) Valerie contracted with the couple to deliver a child biologically related to herself and John through artificial insemination. (13) Valerie would consent to relinquish her parental rights and Debbe would adopt the child after her birth. (14) Valerie gave birth to John and Debbe's baby girl on August 23, 2004. (15)

   Married couple, Christian and Sarah intended to have children one day, when the time was right. (16) This made Sarah's diagnosis of cervical cancer even more devastating. (17) In preparation of chemotherapy, doctors harvested Sarah's eggs to be frozen for future use ("cryopreservation"). (18) Sarah would never be able to carry a child in her womb, but the couple hoped with advancing medical technology they could still have children, biologically related to them both, through the use of a surrogate. (19) If the medical procedure worked, a surrogate would carry a child created by Sarah's eggs and Christian's sperm. (20)

   Typically there are two types of surrogacy arrangements. (21) The first is known as "gestational carrier surrogacy" where a woman provides her womb and carries a child, biologically unrelated to her, to full-term. (22) The egg and sperm are provided by the parents who intends to raise the child ("intended parents"). (23) The egg and sperm may be the genetic material of the intended parents or the genetic material of donors. (24) The second type of surrogacy arrangement is "traditional surrogacy" where the woman who carries the child to term is also biologically related to the child because it is a result of her egg and either the intended father's sperm or donated sperm acquired by the intended parents. (25)

   Under California law, gestational carrier surrogacy contracts are enforceable; (26) whereas, traditional surrogacy contracts are not enforceable. (27) Therefore, intended parents tend to avoid traditional surrogacy contracts and instead opt for gestational carrier surrogacy contracts. (28) Gestational carrier surrogacy costs additional money since intended parents must acquire genetic material or transfer their own genetic material to the surrogate through expensive medical procedures. (29) Thus, enforceable surrogacy contracts are limited to wealthier intended parents, meaning intended parents of more modest means are not able to secure an enforceable contract for the birth of a child. (30)

   Part I of this Article introduces the stories of two families with personal surrogacy experiences. Part II of this Article discusses the two types of surrogacy arrangements and introduces the relationship between surrogacy arrangements and contracts. Part III discusses California's approach to both traditional and gestational carrier surrogacy contracts. Part IV discusses the ramifications, costs and policy behind surrogacy contracts. Part V concludes the Article and argues that enforceable surrogacy contracts are more expensive, but the practicality of entering an enforceable contract provides assurance to intended parents that they will raise their child as a result.

2. GESTATIONAL CARRIER SURROGACY V. TRADITIONAL SURROGACY

   1. Terminology

      According to Concise Medical Dictionary, a surrogate mother is, "a woman who becomes pregnant (by artificial insemination or embryo insertion) following an arrangement made with another party (usually a couple unable themselves to have children) in which she agrees to give the child she carries to that party when it is born." (31) Debbe and John utilized the services of a traditional surrogate mother, Valerie, who carried her biological child to term and subsequently consented to Debbe's adoption of the baby girl. (32) Christian and Sarah utilized the services of a gestational carrier surrogate mother, Amy, who carried the children not biologically related to her to term for the couple. (33)

      A Lawyer's Guide to Emerging Law and Science defines an intended parent as "an 'individual, married or unmarried, who manifests the intent as provided in [the ABA Model Act [section] 102-19] to be legally bound as the parent of a child resulting from assisted or collaborative reproduction.'" (34) John and Debbe were the intended parents of their baby girl. (35) Christian and Sarah were the intended parents of their twin daughters. (36)

      In traditional surrogacy, artificial insemination is a common procedure. (37) According to Concise Medical Dictionary artificial insemination is the "instrumental introduction of semen into the vagina in order that a woman may conceive." (38) Debbe and John's surrogate, Valerie, underwent artificial insemination, using John's sperm, for the conception of their baby girl. (39)

      In vitro fertilization is commonly used in gestational carrier surrogacy. (40) Concise Medical Dictionary explains in vitro fertilization as the "fertilization of an ovum [("egg")] outside the body, the resultant zygote being incubated to the blastocyst stage and then implanted in the uterus." (41) Christian and Sarah's surrogate, Amy, underwent an in vitro fertilization procedure to place the resulting blastocysts in Amy's uterus. (42)

   2. Purpose of Contracts in Surrogacy Arrangements

      The common purpose of a contract is to enforce promises. (43) In The Divergence of Contract and Promise, Professor Seanna Valenitne Shiffrin stated, "[p]romises and their availability provide a concrete (and I believe indispensable) way for parties to reaffirm their equal moral status and respect for each other under conditions in which possibly divergent present or future interests create vulnerability." (44) There may be no greater vulnerability than intended parents' interest in their unborn child carried to term by a woman who promises to perform as a surrogate mother, in either a traditional or gestational carrier situation. (45)

      In a traditional surrogacy setting, the intended father provides his sperm or donor sperm for an artificial insemination procedure to create a child with a woman who promises to birth the child for the purpose of allowing the intended parents to raise the child. (46)

      Debbe and John entered into a traditional surrogacy contract with Valerie. (47) The result was a child Debbe and John raise as a member of their family. (48) Valerie kept her promise to consent to Debbe's adoption of the baby and did not breach the contract. (49) However, Valerie's position of power left Debbe and John vulnerable to her promise to consent to Debbe's adoption the child, after its birth. (50)

      Since traditional surrogacy contracts are not enforceable in California it is the final decision of the surrogate whether the parties will receive their expectations. (51) When the surrogate breaches the unenforceable contract the family court is left to decide what is in the "best interests" of the child for custody. (52) This could end in a joint custody arrangement between the biological father and mother. (53) Thus, if Valerie had changed her mind, John and Valerie would share custody of the child and Debbe would be a stepmother. The vulnerability of the intended parents is apparent in a traditional surrogacy setting.

      In a gestational carrier surrogacy, the intended parents provide a zygote, which forms into a blastocyst, through their own egg and sperm, donated egg and sperm, or a combination of the two. (54) The surrogate mother undergoes an in vitro fertilization procedure and promises to carry the child to term for the intended parents. (55)

      After Sarah's cancer remission, Christian and Sarah decided they were ready to start a family. (56) In 2002 they made their first attempt at pregnancy through the services of a surrogate. (57) After finding a willing surrogate, they had a medical facility combine Sarah's egg with Christian's sperm outside the surrogate's body. (58) On that attempt, none of the resulting zygotes developed into healthy blastocysts for implantation in the surrogate's uterus. (59) Sarah's eggs were gone. (60) The chance for a child biologically related to both Sarah and Christian was over. (61) They put their family plans on hold. (62)

      In 2007, Christian and Sarah discussed the possibility of trying for a family again. (63) Advancing medical technology allowed intended parents to acquire donor eggs for use in substitute for Sarah's eggs. (64) Amy, a mutual friend they knew, desired to be a gestational carrier surrogate. (65) They decided to locate an anonymous egg donor through an agency and use Christian's sperm. (66) The medical facility repeated the process of combining Christian's sperm with eggs, this time acquired from an egg donor rather than using Sarah's eggs. (67) Two of the zygotes developed into healthy blastocysts proper for implantation into Amy's uterus. (68) Nine months later Amy gave birth to Christian and Sarah's fraternal (non-identical) twin daughters. (69)

      This gestational carrier surrogacy contract was enforceable...