On July 22, 2021, the Massachusetts Appeals Court decided custody of a nearly 3 year old boy born in a pseudo surrogacy arranged on Facebook without benefit of lawyers or doctors, contracts or assisted reproduction. Massachusetts has no applicable law on surrogacy. The unmarried Massachusetts intended mothers made an informal pact for a Facebook friend and her boyfriend to conceive a child and turn him/her over to the intended mothers.
The child, Keanu, was born on December 13, 2017, and his birth parents immediately turned him over to an intended mother at which point the delivery hospital hot-lined the birth parents for neglect/abuse. On December 14, the intended mother filed a petition for Keanu’s guardianship. Within the next month, the intended mothers’ relationship dissolved, the custodial intended mother became depressed and anxious, the birth parents consented to the guardianship, and the guardianship was granted. By the time Keanu was about 5 months old, each birth parent had filed a petition to terminate the guardianship and alleged that the intended mother/guardian was unfit.
When Keanu was 8 months old, the guardian filed a petition to adopt him. And shortly thereafter, someone threw a brick and a note through her window. The Judge concluded the birth father threw the rock. In 2019, the birth parents married although living separately, and the guardianship and adoption actions were combined.
During this entire time, the child lived with the guardian. The court appointed an attorney for Keanu who argued that the birth parents abandoned him by giving him to someone known only to them by Facebook, that the birth father placed the child at risk of harm by throwing a brick through the guardian’s window, and that the birth mother exposed him to harm through her Facebook posts. The July 2021 decision leaves the child in the only home he has ever known, terminates the rights of his birth parents, and denies parenting time to the birth mother. Birth Mother has appealed to the Massachusetts Supreme Court.
The import of this case is that surrogacy must be legally enforceable via written and agreed upon contracts providing for all possible eventualities. What was ignored resulted in terrible instability for the child, neglect/abuse investigations of the birth and intended parents, involuntary termination of birth parents’ rights, and contested court cases assumably at great costs. And it’s not over because the Massachusetts Supreme Court may review the case.
Surrogacy is a great way to build a family where all parties 1. voluntarily enter into a collaborative reproduction after vetting of the parties, 2. enter into detailed written agreements that clarify expectations, provide for complications, and protect the process, and 3. treat each other with respect wherein the parties can comfortably rely on established legal processes. Intended parents from all over the world do surrogacies in Missouri and in other of the United States for these reasons. Missouri courts rely on the state’s Uniform Parentage Act and routinely decree intended parents’ rights promptly.
While collaborative reproduction is costly, it is reliable. Unlike adoption, the gestational carrier does not change her mind after birth of a baby not genetically related to her. The assisted reproductive technologies may result in unused frozen embryos which may reduce the cost of additional surrogacies. The Massachusetts judge disparaged this Facebook case (see below) which casts a bad light on a process that admirably builds families, and those families often include the carrier and the intended parents and the child.
“This terribly unfortunate case highlights the need for legislation setting out comprehensive rules governing surrogacy and the lawfulness of, and requirements for, surrogacy arrangements and contracts. Although the Supreme Judicial Court concluded more than twenty years ago that surrogacy contracts may be lawful, see R.R. v. M.H., 426 Mass. 501, 512, 689 N.E.2d 790 (1998), the details of what such contracts require, and when they may be used, remain largely undefined.”
Link for more detailed information: Guardianship of Keanu, 2021 WL 3086959, at *1 (Mass.App.Ct., 2021)