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Surrogacy and Custody

There is a mess of a custody case in Massachusetts (MA) that arose from a very reckless surrogacy situation. Apparently, a same-sex couple posted to social media asking for help having a baby. A friend then offered to conceive with her boyfriend (read: the baby would be biologically unrelated to the couple seeking help) and then give the baby to the couple. You might guess what happened next. The friend gave birth and then decided she wanted to keep the baby. The courts in MA decided that these events amounted to an informal surrogacy. The case has been ongoing since 2018. MA has no surrogacy statutes despite judges and advocates calling for enactment of surrogacy laws. The 2021 opinion from the MA Court of Appeals in this case actually begins with a plea to the legislature for guidance on surrogacy arrangements (surrogacy contracts).

Like MA, North Carolina has no statutes concerning surrogacy. A cursory search also shows that there is no case law addressing the legality of surrogacy in particular. However, surrogacy does take place in this state. There are attorneys in the state that advertise expertise in fertility law that will help draft surrogacy contracts, and apparently so far there has been no real issue stemming from an agreement to use a surrogate.

There is one custody case that concerned surrogacy, but that was a custody case between two of the intended parents, not between the intended parents and the surrogate as in the MA case. Moriggia v. Castelo, 805 S.E.2d 378, 256 N.C.App. 34 (N.C. App. 2017), talked extensively about whether one intended parent could have standing to bring a custody lawsuit. Standing is required before the court can adjudicate a claim. The court of appeals ended up holding that one parent in a surrogacy situation does have standing. Part of the decision was based upon the surrogacy contract that was signed by both parents, stating that “any child resulting from the procedure will be their legitimate child in all aspects” and identifies the parents as the “Recipient Couple.” One can infer from this that the Court has no issue with the validity of a surrogacy contract. However, it is strongly recommended, if you intend to utilize a surrogate, that you consult with an attorney to draft contracts that will hold up in court.