R.R. v. M.H. & Another, D.H., The Husband Of M.H.

Facts

P and D are married but not to each other. A child was conceived through artificial insemination of D with P's sperm after D and P had executed the surrogate parenting agreement. The agreement provided that P would have custody of the child. During the sixth month of her pregnancy and after she had received funds from P pursuant to the surrogacy agreement, D changed her mind and decided that she wanted to keep the child. P brought this action and obtained a preliminary order awarding him temporary custody of the child. The baby girl who is the subject of this action was born on August 15, 1997. D and P are her biological parents. P and his wife, who live in Rhode Island, were married in June 1989. The wife is infertile. They consulted a Rhode Island attorney who had drafted surrogacy contracts for both surrogates and couples seeking surrogacy services. On the attorney's advice, P and his wife consulted the New England Surrogate Parenting Advisors (NESPA), a for-profit corporation that helps infertile couples find women willing to act as surrogate mothers. They entered into a contract with NESPA in September 1996, and paid a fee of $6,000. D who was married and had two children responded to a NESPA advertisement. She reported to NESPA that her family was complete and that she desired to allow others less fortunate than herself to have children. D submitted a surrogacy application to NESPA. The judge found that D was motivated to apply to NESPA by a desire to be pregnant, in order to earn money and to help an infertile couple. NESPA brought P and D together. D was advised to seek an attorney's advice concerning the surrogacy agreement. D also met with a clinical psychologist as part of NESPA's evaluation of her suitability to act as a surrogate. The psychologist, who also evaluated the P and his wife, advised D to consult legal counsel, to give her husband a chance to air his concerns, to discuss arrangements for contact with the child, to consider and discuss her expectations concerning termination of the pregnancy, and to arrange a meeting between her husband and P and his wife. D was evaluated to be solid, thoughtful, and well grounded, that she would have no problem giving the child to P, and that she was happy to act as a surrogate. D's husband told the psychologist by telephone that he supported D's decision. An agreement was signed. P was to have the full legal parental rights and that D's parental rights would not terminate if she permitted the father to take the child home and have custody, that D could at any time seek to enforce her parental rights by court order, but that, if she attempted to obtain custody or visitation rights, she would forfeit her rights under the agreement and would be obligated to reimburse the father for all fees and expenses paid to her under it. The agreement provided that its interpretation would be governed by Rhode Island law. D was to get $10,000. No payment was made in connection with adoption of the child, the termination of parental rights, or consent to surrender the child for adoption. D would be obliged, however, to repay all expenses and fees for services if tests showed that P was not the biological father of the child, or if D refused to permit P to take the child home from the hospital. The agreement also provided that D would maintain some contact with the child after birth. The judge found that D entered into the agreement on her own volition after consulting legal counsel. There was no evidence of undue influence, coercion, or duress. D eventually changed her mind, and she returned one of the checks. D made no attempt to refund the amounts. P paid her, including $550 that he paid for pregnancy-related expenses. The judge appointed a guardian ad litem to represent the interests of the unborn child. The judge entered an order directing D to give the child to P when it was discharged from the hospital and granting P temporary physical custody of the child. The judge concluded that the surrogacy contract was enforceable. This appeal resulted. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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