In February 2018, the Iowa Supreme Court concluded that surrogacy contracts can be enforced in Iowa. They ruled to enforce a surrogacy contract and grant custody of the child to the biological/Intended Father.
Prior to this ruling, Iowa had no clear law negating or protecting the rights of Intended Parents (IPs) entering a surrogacy agreement. Since 1989, Iowa had followed suit with New Jersey after the case of Baby M and prohibited the sale of any “person(s),” which left some gray areas concerning surrogacies.
(As of May 30, 2018, New Jersey residents are allowed to entire legally binding agreements with gestational carriers under a law signed by Governor Phil Murphy.)
The standard has now been set in the state of Iowa to honor and uphold agreed to terms in a surrogacy contract. Regardless of the specific details, the court found that surrogacy provides a viable option for reproductively challenged couples to have a child of their own.
The Case of Baby K & Baby H
Paul and Chantele Montover of Cedar Rapids decided they wanted to have a child. Unfortunately, Chantele could not produce healthy eggs nor carry a child to term. They decided to pursue surrogacy, and placed an online ad to find a gestational carrier.
It’s unclear who assisted the IPs and surrogate in drafting the contract, however both parties agreed on the given terms. Using donor eggs and the Intended Father’s sperm, the surrogate became pregnant with twins.
Allegedly, the agreed to monetary compensation was $13,000 and was supposed to be paid to the IVF clinic used during the surrogacy to cover the costs for the carrier. The surrogate is said to have four of her own children, but was struggling to get pregnant again. She agreed to be a carrier to earn money to complete a cycle of IVF for herself after she delivered the IPs child.
Unfortunately, the Intended Mother claims that the surrogate became non-compliant and argumentative about details or issues that mattered to the IPs. It is also reported that the IPs began insulting the gestational carrier and even made atrocious, racist insults against the woman. The surrogate cut ties with the IPs and did not inform them when the twin girls were born prematurely, each weighing less than two pounds.
In a tragic turn of events, Baby K passed away.
The IPs learned on their own that the children had been born and started legal proceedings to gain custody of their children. The surrogate argued that she wanted to keep the child, but the court granted custody to the biological father.
A legal battle ensued that brought the case to the Iowa state Supreme Court. Ironically, the same New Jersey attorney who represented Mary Beth Whitehead in the landmark “Baby M” case represented the gestational carrier in the “Baby H” case.
Justice Thomas Waterman affirmed the district court decision that the Intended Parents were entitled to keep Baby H. “We hold this gestational surrogacy contract is legally enforceable in favor of the intended, biological father against a surrogate mother and her husband who are not the child’s genetic parents,” he wrote in the 38-page unanimous ruling.
This case may spark numerous debates, but the bottom line is this: It’s a groundbreaking moment for potential parents struggling to conceive in the state of Iowa. They can rest assured knowing their state will protect and uphold their parentage in a gestational surrogacy agreement.