Family Law

Surrogate Marries, Then Divorces, The Intended Father. Is The Surrogate The Baby’s Legal Parent?

When things go wrong with surrogacy, they can go really wrong.

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family court divorce matrimonial law photo by David Lat

Family court (by David Lat).

Most surrogacy arrangements in the United States go smoothly. And surrogacy itself has become commonplace enough that, without something unusual happening, it’s hardly news. But when things go wrong, they can go really wrong. Still, American courts are adapting to new forms of families, and new forms of conflict.

In a recent ruling from the Supreme Court of Montana, one court took on the unenviable task of trying to apply broad legal principles to especially messy facts.

Setting The Scene

This surrogacy arrangement started with a 20-year-old student from China — the (future) father — studying in Alabama. After the recent death of his own father, and with the emotional and financial support of his mother and family back home, the father decided to start the surrogacy process in the United States, expecting to become a single father. Yes, he was 20, and a student. But because he was gay, and because surrogacy is prohibited in China, the United States provided a unique opportunity for him to become a parent.

The father worked with a California-based surrogacy matching agency and was paired with a surrogate in Billings, Montana. The surrogate, a working single mom of two, was eager to move forward quickly.

Things Go Awry

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That could have been it. Despite the unusual circumstances, he might have become a parent and lived happily ever after. But just enough went wrong to send the father and the surrogate down an unplanned road. First, the baby arrived three weeks early, in December 2019. Second, the father’s mother was denied a visa to come to the United States to care for her grandchild. That was problematic, because the father’s mother intended to care for the baby so that her son could continue his university studies in Alabama. Unfortunately, at that time, COVID-19 emerged in China. So, with his mother stuck without a visa to come help him in the U.S., the father was on his own with his newborn.

When the Billings hospital discharged the baby a few days after birth, the surrogate generously offered to drive the father and the baby that she had just delivered to their local Airbnb, where the father planned to stay for some time. But that trip led to more difficulties. “On arrival, however, concerned about the safety of the downtown location, and Father’s lack of experience in caring for a newborn baby alone, [the] Surrogate invited him and the baby to temporarily stay at her home until he could find a more suitable temporary rental.” The new father accepted the offer.

Within two weeks, the surrogate threw a curve ball and proposed to the father that they should get married. She suggested that this might be a win-win because he could still continue his studies in Montana and also be added to her health insurance, while still being green card eligible. In return, she proposed that the father’s mother could give the surrogate certain payments that the father’s mother had offered to her son, so as to help him with housing and ongoing childcare.

Despite the obvious problems with exchanging money for marriage (not to mention the fact that the father is gay), the father accepted. And when presented with a prenuptial agreement from the surrogate, he signed without counsel.

The PreNup

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The prenuptial agreement contained, among other provisions, that “in the event of a future marital dissolution proceeding, all property previously or subsequently acquired in either of their ‘sole names’ would be separate non-marital property,” respectively retained and distributed to each accordingly, and thus not subject to equitable division. Consistent with their agreement ahead of time, the father’s mother did send a large sum — $100,000 — to help with housing. The surrogate then accepted the money as “a gift,” and used it to purchase a home purportedly for herself, her two children, the father, the father’s boyfriend, and the baby. However, the surrogate titled the house in her name alone.

More importantly, the prenup provided that “[i]t is agreed that [the Surrogate] has a parent[-]child relationship with” the baby, which she had of course given birth to. So … cue the drama.

By September 2020, the relationship between the surrogate and the father had soured. The surrogate kicked father out of the house, denying him access to his baby, and by October, she filed for divorce, asking for primary custody.

The Trial Court

In August 2021, the trial court issued a ruling, finding that (1) father was sufficiently fluent in English to read and understand the meaning and consequences of the parties’ premarital agreement; (2) the agreement was valid and enforceable pursuant to its terms; (3) the parties’ non-traditional marriage was uncommon, but nonetheless valid and untainted by fraud; (4) “a parent-child relationship exists” under Montana law between the surrogate and the baby, based on the parent-child relationship declaration in their premarital agreement and her subsequent involvement and relationship with the child; and (5) the surrogate thus had legal “standing” under Montana law “to establish a parenting plan” for the child. A further ruling placed the child in the primary custody and care of the surrogate, with lesser time allocated to the father.

The father, unsurprisingly, appealed. Earlier this month, the Montana Supreme Court ruled.

Rewind

It is worth noting that prior to entering the surrogacy arrangement, both the surrogate and the father entered into an extensive contract, each represented by individual counsel, that repeatedly stated that the surrogate was not a parent of the child that she would carry and that she agreed she would not form a parent-child relationship with the child based on her time as a surrogate. Moreover, prior to the birth, a Montana court order was obtained which named the father as the sole legal parent of the child. So the question was whether their subsequent marriage, as well as a pre-nup saying that the surrogate had a parent-child relationship with the baby, changed all of that, legally speaking?

The Montana Supreme Court Ruling

The 58-page ruling was a bit of a nail-biter for those on Team Father. Of the four questions before the court, the court answered the first three in favor of the surrogate.

  1. Did the district court erroneously conclude that the parties’ California Gestational Carrier Agreement (GCA) did not preclude the surrogate from later establishing a parental interest in the subject child under Montana law? The court answered: No.
  2. Did the district court erroneously fail to conclude that the parent-child relationship provision of the parties’ subsequent Montana premarital agreement was unenforceable due to lack of voluntary consent of the father? The court answered: No.
  3. Did the district court erroneously fail to conclude that the parent-child relationship provision of the parties’ Montana premarital agreement was equitably unconscionable? The court answered: No. (But wait for it.)
  4. Did the district court erroneously conclude that the parties’ post-surrogacy premarital agreement and surrogate’s ensuing relationship with the child were sufficient to create a third-party parental right regarding the child? The court answered: Yes, the lower court was wrong.

Traditionally, a person who is not a parent to a child at birth would need to complete an adoption process to become a legal parent to that child. However, some case law has developed — especially concerning same-sex couples parenting together before the legalization of same-sex marriage — where a parent-figure has been able to legally establish their parent-child relationship, and subsequent enforceable parental rights, without undergoing an adoption.

The court, however, found those few cases in Montana distinguishable from this one, and focused on “nonparent” parental claims under Montana law. Those claims require, as an essential element of the nonparent’s claim, that the nonparent prove by clear and convincing evidence that the recognized parent had acted “contrary to the child-parent relationship.” The court wrote that “Here, the record manifests that Surrogate had a full and fair opportunity to assert and prove her statutory nonparent parental rights claim in a manner of her own choosing. For whatever reason, her manner of proof and supporting argument simply did not focus on proof of parental conduct contrary to the child-parent relationship.”

The conclusion resulted in the now almost-4-year-old child going back under the exclusive parental rights and care of the father.

I was able to connect with attorney Melinda Driscoll, who represented the father in the case. Driscoll explained that she felt passionately that an injustice had occurred, compelling her to continue the representation of the father long after the attorney fee retainer had run dry.

So she is happy that the Montana Supreme Court was able to right the wrong imposed on the father and child. In response to my search for a lesson emerging from the chaos, Driscoll felt that one of the most significant issues she saw was the vulnerability of the parties, especially right after birth. Driscoll believes that if both had more support, perhaps from the various professionals in the industry – the agency that connected the parties, or the mental health professionals involved — much heartbreak could have been avoided. But Driscoll also recognized the privacy concerns of surrogates and intended parents that can make intervention from third-parties difficult.

What is the lesson learned, then? At the very least, we can agree that a single parent through surrogacy may want to think twice before marrying the surrogate.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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