2020] CONTRACTING PREGNANCY 1593
The Iowa court followed a national trend of upholding gestational
surrogacy contracts, under which surrogates become pregnant, after in vitro
fertilization (“IVF”), with children to whom they are not genetically related.3
Prenatal care and decision-making was one reason why the relationship
between the parties in P.M., who met on Craigslist, erupted in a court battle.4
The surrogate believed that the intended parents—the couple seeking the
services of a surrogate—had failed to pay for what was promised in the
contract.5 The intended parents accused the surrogate of failing to
communicate information about her pregnancy and then about the child’s
birth.6 As the relationship deteriorated, and resulted in a dispute about
parentage, the intended parents sent texts and Facebook messages to the
surrogate with racial epithets and statements such as, “we are paying you, we
hired you, and we are in charge.”7 In another exchange, an intended parent
wrote by text: “A carrier shouldn’t act like that as the doctors told me they
sho uld be sa ying yes ma’a m[.] What eve r you guy s wan t to d o.” 8 The court held
that the surrogacy contract was valid, and to decide otherwise “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.”9
In response to conflicts like those that arose in P.M., states have enacted
laws to ensure that surrogates and intended parents are a good match and to
3. As of 2017, 95 percent of contracts were for gestational surrogacy, rather than
traditional surrogacy arrangements in which the surrogate’s own egg is fertilized and thus the
surrogate is genetically related to the resulting child. SITAL KALANTRY ET AL., CORNELL INT’L
HUMAN RIGHTS: POLICY ADVOCACY CLINIC, SHOULD COMPENSATED SURROGACY BE PERMITTED OR
PROHIBITED? 5 (2017), available at https://cpb-us-e1.wpmucdn.com/blogs.cornell.edu/dist/
4. P.M., 907 N.W.2d at 525–27.
5. Id. at 527. This Article refers to “intended parents” although, in many states, an
individual may contract with a gestational surrogate.
6. Id. at 527–28. The appellant’s brief also alleges that the intended parents attempted to
block the surrogate’s husband from attending prenatal appointments: “Three days later, C.M.
demanded that T.B.’s husband no longer accompany her to doctor’s visits, disregarding T.B.’s
needs as a pregnant mother.” Defendants-Counterclaimants-Appellants’ Final Brief at *19, P.M.,
907 N.W.2d 522 (No. 17-0376), 2017 WL 10982206, at *19.
7. P.M., 907 N.W.2d at 527 (quoting a text from C.M. to T.B.). The brief submitted by
Appellants detailed communications between the parties, in which the intended father posted a
racist message slurring the surrogate’s husband as “a dirty Mexican.” Defendants-
Counterclaimants-Appellants’ Final Brief, supra note 6, at *20. The intended mother “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.” P.M., 907 N.W.2d at 527. The surrogate ceased all contact and delivered twins
(one died several days after birth) and did not inform the intended parents. Id. at 528. The
surrogate sought to invalidate the contract based on her relationship to the child and her belief
that the intended parents were not fit to assume custody, in part because of their racist remarks.
Id. at 527–28. The intended parents’ disturbing behavior would have been invisible but for the
litigation over the custody of the resulting child.
8. Id. at 527.
9. Id. at 525.