Topic:
LEGISLATION; SURROGATE PARENTING;
Location:
SURROGATE PARENTING;
Scope:
Background; Court Cases; Other States laws/regulations; Connecticut laws/regulations;

OLR Research Report


September 3, 1999

 

99-R-0857

SURROGATE PARENT CONTRACTS IN CONNECTICUT AND OTHER STATES

 
 

By: Lawrence K. Furbish, Assistant Director

You asked for a background report on surrogate parent contracts, including their current legal effect in Connecticut, past attempts to legislate in this area, and the law in other states.

SUMMARY

Connecticut does not either explicitly authorize or prohibit surrogate parenting contracts. Accordingly, people are free to enter into such contracts. As long as both sides live up to the contract there would be no problem. The probate courts usually treat such situations as stepparent adoptions; the surrogate mother voluntarily terminates her parental rights and the intended mother adopts the child. The intended father is already the biological father if his sperm was used. There are two or three of these surrogate-related adoptions per year. If one of the parties to the contract violated its terms, the other party could go to court seeking enforcement, but it is not clear how the court would rule. It could decide using the normal contract law principles or it could decide that such a contract is unenforceable.

There have been a number of attempts to pass a law governing surrogate parent situations, but thus far the General Assembly has been unwilling or unable to agree on what the public policy should be. Some bills introduced in the 1980's would have banned surrogate contracts while others would have authorized them. A bill to study the issue did not pass. A bill in 1999 would have authorized surrogate contracts and regulated them.

Fewer than half of the states have adopted legislation on surrogate contracts. Some have made the contracts void and unenforceable, some have prohibited only contracts entered into for pecuniary gain, one state makes it a felony to participate in a surrogate contract under certain circumstances, and some states authorize them and establish procedures for their enforcement.

CURRENT CONNECTICUT LAW

Connecticut has no statute that either authorizes surrogate contracts or arrangements or prohibits them. Because there is no prohibition people are free to enter into such contracts. Linda Dow, chief legal counsel to the probate court administrator, says that she occasionally gets calls from attorneys inquiring about any procedures they need to follow once they have executed such a contract.

When an intended couple and a surrogate have made a surrogate arrangement, whether by formal contract or by informal agreement (many such situations arise between relatives), and the pregnancy goes to term, the situation requires an adoption. Dow estimates that the probate court handles two or three of these a year, but the courts do not keep statistics. If the intended father has donated the sperm and a physician's letter attesting to that is on file and the surrogate mother voluntarily terminates her parental rights, the probate court will do a stepparent adoption with the intended mother adopting the child in conjunction with her husband, the child's natural father. If the surrogate is married, the court requires a letter from her husband agreeing to the resolution.

It is unclear what would happen in a situation where an anonymous sperm donor was used rather than the intended father. Under the artificial insemination statutes (CGS 45a-771 to 779) a statement from the physician who conducts the artificial insemination is supposed to be filed with the probate court. Dow says that none are being filed, and she does not know if that is because they are not being done, people do not know about the law, or people are ignoring it.

If during the course of a surrogate contract one of the parties defaulted, the other parties could go to court seeking enforcement. To the best of our knowledge (and Dow's) this has never happened in Connecticut. In such a situation the court could proceed to enforce the contract using the normal principles of contract law or it could refuse to enforce it finding such a contract to be unconscionable or against public policy.

Last year the Connecticut Supreme Court decided a very complex child custody case that involved a surrogate contract (Doe v. Doe, 244 Conn. 403). The Court discussed surrogacy and commented on its ancient roots and modern widespread acceptance. But in his majority decision Justice Borden explicitly stated that the decision did not address "whether, or to what extent a surrogate contract, by which the surrogate obligates herself to surrender the child to the child's father and his spouse, is enforceable" (Doe v. Doe, ft. 19, p. 420). We have attached a copy of OLR 98-R-0550, which summarizes this case.

PAST CONNECTICUT LEGISLATION

A number of bills dealing with surrogacy have been introduced over the last 20 years, but none have passed. We did not attempt to search every year but have instead provided information on three bills. If you would like to know about every bill introduced on this topic, please let us know.

In 1983, HB 5316, sponsored by Representative Tulisano, would have established a statewide policy concerning surrogate parenthood and prescribed the duties of the adults involved and the rights of the children born of surrogate parents. It prohibited surrogate parent agreements other than those adopted pursuant to the bill's provisions. It established what could and had to be in the surrogate agreement, directed the Department of Children and Youth Services (DCYS) to establish a maximum fee that a surrogate could charge, and required DCYS or a child-placing agency to conduct a home study as part of any surrogacy proceeding. The bill established the duties of the attorneys and physicians involved; the role of the surrogate's husband, if she had one; and the probate court procedure for terminating the surrogate's parental rights and finalizing the surrogate arrangement. The bill received a public hearing from the Judiciary Committee, which took no further action.

In 1987, proposed bill 5398 would have regulated surrogate contracts and made them enforceable only in limited circumstances. The bill stated that a "surrogate parenting agreement shall be deemed to be against the public policy of this state and shall be void and unenforceable." There was widespread disagreement on the Judiciary Committee on this bill, and it ultimately reported out a bill to study surrogate parenting, including the enforceability of agreements, fees, and various assisted reproduction technologies. The House recommitted the bill.

In 1999, HB 5966 would have established a procedure to regulate surrogate arrangements. We have attached a copy of 99-R-0524, which summarizes this bill. The bill also had provisions concerning guardians of a minor's estate and adoption by "coparents." But the surrogacy and guardian provisions were deleted from the bill when the Judiciary Committee favorably reported it. The surrogacy provisions were never put back in, and the bill passed the House but was never taken up in the Senate.

OTHER STATES

At least 20 states have adopted laws dealing to some extent with surrogacy. It is not easy to be more precise because the ways states have dealt with this issue vary tremendously. Some have provisions specifically dealing with surrogacy, either expressly prohibiting or authorizing it, while others deal with it indirectly within the context of their adoption or artificial insemination laws. For example, in West Virginia fees and expenses connected with an agreement in which a woman agrees to become a surrogate mother are exempt from the general prohibition against giving money or other things of value to secure custody of a minor child (W. Va. Code 48-4-16). And in Arkansas children born of a surrogate mother are covered by the statutory provisions that govern the paternity of a child born in other than traditional family circumstances (Ark. Stat. Ann 9-10-201).

The remainder of this report presents examples of some of the different approaches various states use without summarizing every state's law. At least five states make surrogate contracts void and unenforceable (Arizona, Indiana, New York, North Dakota, and Utah). In New York the statute simply says that "surrogate parenting contracts are hereby declared contrary to the public policy of this state and are void and unenforceable" (N.Y. Dom. Rel. Law 122). A surrogate parenting contract can be written or oral, and it is defined as any agreement whereby a surrogate agrees to artificial insemination or embryo implant and then to surrender or consent to the adoption of the child so conceived. In any dispute between the birth mother and the genetic father, the court is directed not to consider the surrogate contract as adverse to the birth mother's rights and it may award either party fees or costs. The law also penalizes people who arrange surrogate contracts for a fee.

Kentucky, Louisiana, Nebraska, Nevada, and Washington on the other hand prohibit only surrogate contracts entered into for a fee. Kentucky's law is an example of a statute that never explicitly refers to surrogacy or surrogate contracts. It prohibits anyone from selling, purchasing, or procuring for purchase or sale any child for the purpose of adoption or any other purpose, including termination of parental rights (Kent. Rev. Stat. Ann 199.590). It also prohibits any person, organization, agency, group, or legal entity (other than a child-placing agency) from accepting any fee for bringing adoptive and genetic parents together. The attorney general has issued an opinion that no one in a surrogate parent transaction, including the surrogate mother, can receive payment or consideration as part of the agreement (ftn. to 199.590).

In Michigan a surrogate parenting contract is void and unenforceable as contrary to public policy (Mich. Stat. Ann. 25.248(155)). But the law goes on to make it a felony to enter into, arrange, induce, or assist in a surrogate parent contract involving a woman who is a minor, mentally retarded, or mentally ill or who has a developmental disability ( 25.248(157)). It is also a felony to enter into, induce, or assist, a surrogate parent contract for compensation.

Florida, on the other hand, specifically allows surrogacy. It defines a "commissioning couple" as the intended mother and father who will use assisted reproductive technology and the egg and sperm of a least one of them to conceive a child. Gestational surrogacy is the process whereby the commissioning couple's eggs or sperm, or both, are fertilized in vitro with the resulting embryo implanted in the surrogate woman. The gestational surrogacy contract is the agreement between the surrogate and the commissioning couple (Fla. Stat. Ann. 742.13). The law permits only reasonable compensation directly related to the donation of the sperm, eggs, or embryo. It establishes conditions for the contract to be binding, what must be in it, and when parties can enter such a contract. The commissioning couple can only pay expenses directly related to the surrogate's medical birth related needs. The law also contains an expedited process after the birth to affirm the parental status of the parties and the child's birth certificate.

New Hampshire's surrogate law is the longest and most complex of those we have seen (N.H. Rev. Stat. Ann. 168-B:1 to B:32). It covers rules of parentage, obligations to and rights of the child, artificial insemination, fertilization and pre-embryo transfer, surrogacy, judicial pre-authorization, and liabilities and immunities. The law makes surrogate arrangements legal only if they conform to the procedures established in statute, including health care provider certification and judicial pre-authorization. Promoting or soliciting a surrogacy arrangement for a fee is prohibited. The intended mother must be unable to bear a child without risk to her or the child's health. Request for judicial approval must be initiated by a petition and the court must hold a hearing; the hearing and resulting records are closed. The law specifies what must be in the surrogate contract, and establishes procedures for the parties to terminate it.

Virginia requires all surrogate parent contracts to be approved by the court, but it also states that any surrogate contract that has not been so approved must also be governed by the statute's provisions (Va. Code Ann. S 20-159). The law contains a number of requirements for the contracts and how they are to be enforced and implemented. It also prohibits surrogate brokers from accepting compensation to arrange surrogate contracts.

If you would like more detailed descriptions of any of these state laws please let us know. We have enclosed a copy of 99-R-0793, which summarizes the Uniform Status of Children of Assisted Conception Act. This act has provisions related to surrogate parenting. Virginia is one of only two states that have adopted this act, but its law seems to have diverged significantly from the uniform act's provisions.

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