Gestational carrier agreements: Massachusetts recognition of the parties' choice of laws.

AuthorLee, Michelle-Kim

    Generally, if parties to a contract in Massachusetts expressly set forth the governing law within the agreement, the statutory and the common law will uphold the parties' choice as long as the result is not contrary to public policy. (1) In the context of gestational carrier agreements, however, both the federal and Massachusetts legislatures are silent on whether to uphold a choice of law provision. (2) A gestational surrogacy concerns a form of artificial reproductive technology in which another couple's fertilized embryo is placed in the reproductive organs of a potential birth mother who does not have any genetic connection to the embryo. (3) By entering into a gestational carrier agreement, the potential birth mother agrees to carry any resulting child to term on behalf of the biological parents and to surrender all rights to the child after birth. (4) In Hodas v. Morin, (5) the Supreme Judicial Court of Massachusetts recently addressed the gestational carrier issue by applying traditional choice of law analysis; the court upheld a Massachusetts choice of law provision in a gestational carrier agreement entered into outside of the Commonwealth. (6)

    The traditional application of Massachusetts' choice of law analysis in gestational carrier agreements is problematic because gestational carrier agreements involve unique questions of individual safety, health, as well as the general welfare of the parties and unborn child. (7) Most state legislatures have not addressed the validity and enforceability of gestational carrier agreements. (8) Other states, however, expressly prohibit these agreements. (9) The varying state policies regarding gestational carrier agreements demonstrate a strong need to address the use of choice of law provisions in the context of these novel agreements. (10)

    This note addresses the need for a uniform act regarding choice of law provisions in gestational carrier agreements. Part II provides an overview of the choice of law doctrine because it is important to understand the basic principles of choice of law in written agreements. (11) Additionally, Part III analyzes existing uniform and state parentage laws governing gestational carrier agreements in Massachusetts generally. (12)

    Part IV addresses Massachusetts' recent recognition of choice of law provisions in the context of gestational carrier agreements under Hodas. (13) Part V analyzes the adverse effect of the Hodas decision on other states' conflicting policies toward gestational carrier agreements. (14) Specifically, Part V focuses on the potential risk of forum shopping if a state remains silent on choice of law provisions with respect to gestational carrier agreements. (15) Finally, Part VI addresses the pressing need for a uniform statute to create a consistent standard public policy regarding gestational carrier agreements.


    When parties to a transaction specify which state's law governs their agreement, Massachusetts courts will generally uphold the parties' choice, assuming the choice fulfills two requirements. (16) First, the chosen state must have some substantial relationship to the parties or the transaction. (17) Second, the state's law must not be contrary to the fundamental public policy of a state that otherwise has a materially greater interest in determining the particular issue, yet the chosen law could still be the applicable law in the absence of an effective choice by the parties. (18)

    Prior to 2004, Massachusetts courts were silent on the issue of choice of law provisions in gestational carrier agreements. (19) Massachusetts courts had, however, analyzed choice of law provisions in the context of traditional surrogacy agreements. (20) In R.R. v. M.H., (21) the Supreme Judicial Court of Massachusetts considered the validity of a traditional surrogacy parenting agreement between the plaintiff father and defendant mother. (22) The court analyzed the validity of a Rhode Island choice of law provision within the surrogacy agreement. (23)

    In R.R. v. M.H., despite a Rhode Island choice of law provision, the court applied Massachusetts law because of the legal significance of its provisions rather than an interpretation of the agreement. (24) The parties did not raise the application of Rhode Island law during litigation, but instead agreed to the application of Massachusetts law. (25) The parties, however, could have invoked Rhode Island law based on the parties' sufficient contacts with the state. (26)

    Despite these contacts, the court chose to apply Massachusetts law because Massachusetts had a more substantial interest in determining the validity of the agreement. (27) While Massachusetts has enacted legislation relating to parentage in general and some states have adopted uniform acts related to gestational carrier agreements, the Massachusetts legislature has not passed any laws directly related to gestational carrier agreements. (28) Furthermore, no state has adopted a uniform act that speaks directly to choice of law provisions. (29) Hodas is the first case in the nation where a state's highest court directly responded to the issue of choice of law in gestational carrier agreements. (30)


    Gestational carrier agreements must be distinguished from traditional contracts because of the unique issues surrounding gestational surrogacy. (31) Gestational carrier agreements not only involve contracts and the exchange of money for reproductive products and services, but also strangers in procreation. (32) Thus, hotly debated issues surrounding gestational carrier agreements include whether such agreements are harmful to women, children, or families, and whether gametes, embryos, children and women who serve as surrogates are nothing more than commodities. (33)

    Several forum mechanisms could regulate gestational carrier agreements. (34) Some nations have created specific agencies to deal with reproductive technologies and their attendant agreements. (35) The United States, however, has chosen to regulate family law primarily through three areas: federal legislation, state legislation and common law, and uniform acts. (36)

    Although no federal legislation exists regarding gestational carrier agreements, at least twenty-three states have adopted surrogacy laws that prohibit upholding carrier agreements under traditional principles of contract law. (37) Generally, these statutes refuse to honor all compensated surrogacy agreements, but differ in how to determine the legal parentage of the child. (38) Other states implicitly legalize carrier agreements, excluding them from the statutes that criminalize baby-selling, but provide no standards for determining parental rights and responsibilities when someone enters into such a contract. (39)

    The Massachusetts legislature, like many other state legislatures, has yet to address the issues surrounding gestational carrier agreements, including the use of choice of law provisions within these agreements. (40) The legislature may be hesitant to address assisted reproductive technology and gestational carrier agreements because of the complex and constantly changing field of assisted reproductive technology, changing climate of traditional family forms, and abortion-related issues. (41) Reproductive technologies challenge established cultural, religious, ethical and legal perceptions of the family, resulting in ethical, legal, political and social debates. (42) For numerous reasons, regulating the area of human reproduction based on heightened political sentiments is dangerous. (43)

    The National Conference of Commissioners on Uniform State Laws (NCCUSL), a non-profit unincorporated association comprised of state commissions on uniform laws from each state, studies and reviews state laws to determine what areas of law should be uniform. (44) The NCCUSL addressed gestational carrier agreements and choice of law provisions generally as part of the Uniform Parentage Act of 2000, but the relevant sections did not provide much guidance for the states, and left the courts to determine choice of law issues and the general validity of gestational carrier agreements. (45) Furthermore, the Uniform Parentage Act does not bind Massachusetts because the Massachusetts legislature has not presently adopted it. (46) Until the Massachusetts legislature speaks directly to the issues surrounding gestational carrier agreements, the courts can only consider the issues on a case by case basis. (47)


    In 2004, in Hodas v. Morin, the Supreme Judicial Court upheld a Massachusetts choice of law provision in a gestational carrier agreement between genetic parents domiciled in Connecticut and a gestational carrier domiciled in New York. (48) Neither party resided in Massachusetts, yet they contracted for Massachusetts law to govern the agreement so as to obtain a pre-birth order of legal parentage to the genetic parents. (49) The Massachusetts Probate and Family Court denied relief, fearing forum shopping, and the Appeals Court enjoined the hospital from issuing a birth certificate for a child born of the gestational carrier. (50) The Supreme Judicial Court, however, upheld the choice of law provision, remanded the case to the Probate and Family Court, and directed the court to issue a pre-birth judgment of parentage and pre-birth record of birth to genetic parents. (51)

    Absent any statute regulating the interpretation of gestational carrier agreements in Massachusetts, the Supreme Judicial Court applied Massachusetts' traditional choice of law principles--whether Massachusetts had a...

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