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Thursday, November 04, 2010

Minnesota Court: Surrogate Legal Mother But Father Gets Custody

The Minnesota Court of Appeals recently ruled that a woman who entered a surrogacy agreement with two gay men is the legal and biological mother of the child.  But the Court granted sole legal and physical custody to the father whose sperm was used for the pregnancy.

In ruling that the surrogate is the child’s mother, the court relied on the language in Minnesota’s Parentage Act, which states that the parent child relationship “may be established by proof of her having given birth to the child.” While the Act does not allow an egg donor to be deemed the biological or legal parent of the child, it defines egg donor as “[a] type of assisted-reproductive therapy in which eggs are removed from one woman and transplanted into the uterus of another woman who carries and delivers the child.” Because it was undisputed that the surrogate’s egg was fertilized and that she carried the baby and gave birth to her, the surrogate was held to be the biological and legal mother of the child.

But the court also held that the father’s male partner was not the child’s father stating:

“While [the partner] is and will continue to be an important person in the child’s life, he is not a legal or biological parent of [the child] under Minnesota law and is not entitled to custody of the child on the facts of this case.”

The surrogate also attempted to argue that the surrogacy agreement was invalid under Minnesota law. The law is unclear on the status of these agreements because our courts have never ruled on whether or not surrogacy contracts should be honored. The court here did nothing to clarify any confusion surrounding the use of surrogacy agreements as it refused to address the issue.  So, unlike in other states where surrogacy contracts have been deemed valid or void as against public policy, Minnesota continues to fail to provide any direction on the use of these agreements.

So was this a good decision?

That’s difficult to answer. While I am pleased that the court didn’t hesitate to grant sole legal and physical custody of the child to her gay father, it wasn’t a fair fight as the surrogate was clearly unfit to have custody. The surrogate’s own expert witness stated that she was a “mistrustful, immature, narcisstic, and self-indulgent individual”  leading the trial court judge to call into question the surrogate’s “capacity and ability to provide positive guidance” to the child.  Further, it would be “detrimental to the child if [the surrogate] had sole authority over [the child's] upbringing.”

How do the men feel about the decision? Should their attorney appeal the decision? The father who was granted sole physical and legal custody may be satisfied with the decision and decide against rolling the dice with our conservative Supreme Court.  But, his partner can’t be as happy with the outcome as he has no legal relationship to the child.  If anything happens to the father, his partner has no current legal right even to visitation with the child.

It’s difficult to determine whether this decision is a victory.  What’s not difficult to see is that it did nothing to provide direction for the future use of surrogacy contracts. If you plan to use a surrogate, please contact an attorney to be sure of your rights.


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