P.M. v. T.B.

907 N.W.2d 522 (2018)


P.M. and C.M. married each other in 2013. P.M. had two children from his first marriage, and C.M. had four children from hers. The Ms were nearing age fifty and wanted to have a child together. C.M. was no longer able to conceive, so the Ms placed an advertisement on Craigslist in 2015 seeking a woman willing to act as a surrogate mother. T.B. and D.B. married each other. T.B. has four children from a prior marriage; D.B. has no children and had never been married. The Bs want to have children together. In 2010, T.B. had a tubal pregnancy which was life-threatening and incapable of leading to the birth of a viable child, so she surgically terminated the pregnancy. T.B. and D.B. continued to try to conceive without success. They decided they needed to supplement D.B.'s income to pay for assisted reproduction procedures. T.B. responded to the Ms' Craigslist advertisement. They agreed that T.B. would gestate two embryos fertilized in vitro with P.M.'s sperm and the eggs of an anonymous donor. The Midwest Fertility Clinic (Midwest) required a written contract between the parties, so the Ms hired a lawyer to draft the agreement. Its stated purpose was 'to enable the Intended Father [P.M.] and the Intended Mother [C.M.] to have a child who is biologically related to one of them.' Ms agreed to pay up to $13,000 for an IVF procedure for T.B. to enable her and D.B. to conceive their own child. This payment was conditioned upon T.B. surrendering custody of a live child upon birth. Ms would pay T.B.'s pregnancy-related medical expenses. At T.B.'s request, an additional term was included stating that '[i]n the event the child is miscarried or stillborn during the pregnancy, the amount of $2,000 will be paid to the Gestational Carrier.' The Surrogacy Agreement provided that T.B. understands and agrees that in the best interest of the child, she will not form or attempt to form a parent-child relationship with any child or children she may carry to term and give birth to pursuant to this agreement. The Bs agreed to surrender custody of the child to the Intended Parents immediately upon birth and that the Intended Parents are the parents to be identified on the birth certificate for this child. Bs did not exercise their right to consult a lawyer before the Surrogacy Agreement was signed by all four parties. But each person acknowledged in writing that he or she has carefully read and understood every word in this agreement, and its legal effect and each party is signing this agreement freely and voluntarily and that neither party has any reason to believe that the other party or parties did not understand fully the terms and effects of this agreement, or that the other party did not freely and voluntarily execute this agreement. Blood testing confirmed T.B.'s pregnancy. The parties' relationship soon began to break down over their disagreement as to payment of medical expenses. T.B. was carrying viable twins. In a May 20 letter from her attorney, T.B. sought more money from the Ms beyond the $13,000 agreed to in their contract so she could use a costlier clinic for her own IVF. Twin babies were born thirteen weeks prematurely on August 31. T.B. did not tell the Ms about the birth. The babies were placed in the neonatal intensive care unit. One died eight days after birth. T.B. did not inform the Ms about the baby's illness or death. The Bs unilaterally arranged for the deceased baby's cremation. Ms filed a petition for declaratory judgment and temporary and permanent injunction alleging their belief that the babies had been born. The court ordered Bs to surrender custody of 'Baby H' to the Ms. Ms have had physical custody of Baby H since that date. Bs argued that the Surrogacy Agreement is unenforceable as violating the constitutional rights of T.B. and the baby and Iowa statutes and public policy. The Bs sought permanent physical and legal custody of the baby. Genetic testing excluded Bs as the biological father and mother. The district court concluded that P.M., as the biological father, has the superior constitutional right to raise the baby and awarded sole legal custody to P.M. pending final resolution of the case. The court also determined this was in the best interest of Baby H. The court concluded that the Surrogacy Agreement was enforceable as a matter of law. Bs appealed.