Court rules surrogacy contracts are enforceable in Iowa
DES MOINES — An Iowa man who agreed to pay a surrogate to birth a baby is the child's legal parent, not the birth mother, the state Supreme Court said Friday.
It is the first time the state's highest court has determined surrogacy contracts can be enforced.
The court concluded that the surrogacy contract between Paul and Chantele Montover of Cedar Rapids and a Muscatine woman is enforceable under Iowa law.
"A contrary holding invalidating surrogacy contracts would deprive infertile couples of the opportunity to raise their own biological children and would limit the personal autonomy of women willing to serve as surrogates to carry and deliver a baby to be raised by other loving parents," the court said.
The Montovers agreed to pay $13,000 to the Muscatine woman, but after the child's birth she wanted to keep the child. The court ruled that because Paul Montover is the baby's biological father he will have permanent custody of the 17-month-old child, called "Baby H" in court documents.
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"It is good news for those families who seek alternative ways to create a family," said Casey Rigdon, attorney for the Montovers. "If it went the other way, it would have made surrogacy impossible in the state of Iowa."
"Baby H" was created with Paul Montover's sperm and a donor egg after entering into a contract with the gestational carrier from eastern Iowa in exchange for $13,000. The carrier, identified only by initials T.B. in court documents, decided to keep the child after she became troubled with the conduct of the Montovers.
The carrier gave birth to twins on Aug. 31, 2016, and one of the children later died. She was ordered to surrender the surviving child to the Montovers once they learned of the birth. In District court in Linn County last February, a judge ruled the gestational agreement was enforceable and didn't violate Iowa public policy or the constitutional rights of the birth mother or the baby.
Iowa doesn't have a law that lays out gestational agreements in detail. But in Iowa Code 710.11, which deems it a felony to attempt to purchase or sell another person, it specifies that "this section does not apply to a surrogate mother arrangement."
In affirming the lower court ruling, the Iowa Supreme Court noted that Iowa's 1989 statue specifying surrogacy exceptions was written only a year after the high-profile "Baby M" case in New Jersey, where that state's supreme court invalidated a surrogacy contract.
"The Legislature's decision to allow traditional surrogacy arrangements can be taken as a signal that it would also allow gestational surrogacy arrangements," the court said.
Harold Cassidy, the New Jersey attorney in the "Baby M" case who also represented the Muscatine gestational carrier, argued that the court's decision sets up a precedent of commodification of children and exploitation of women and is against public policy.
The court said the parties entered into the surrogacy agreement voluntarily and the gestational carrier did not allege she signed it under economic duress. Furthermore, she had given birth to four children previously and "was no stranger to the effects of pregnancy."
Important constitutional questions remain, Cassidy said Friday. He said both the birth mother and child's due process and equal protection rights guaranteed by the U.S. Constitution are violated by the enforcement of the contract, and the court erred in relying upon state law to govern federal constitutional issues.
"The child has a constitutional right not to be bought as a commodity," he said in a statement, and to "keep her relationship with the mother who carried her and gave birth."
The Montovers, who told their story to The Register last fall, said they are seeking the cremains of the other child "for a proper burial," but are relieved to put this behind them.
"What has taken place is important to help the future of surrogacy in Iowa," Chantele Montover said.