Published by Vorzimer, Masserman & Ecoff
LEGAL UPDATE: RECENT CASES
AND LEGISLATION
Massachusetts Court Issues Initial Ruling in Favor of
Intended Father in Traditional Surrogacy Contract
In a ruling which could have long term impact in Massachusetts, a Worcester, Massachusetts Court of Appeal Judge awarded physical custody, albeit on a temporary basis, to an Intended Father.
The Intended Father, a married man, entered into a Traditional Surrogacy contract with a married surrogate. Under the contract, which provided that the artificially inseminated surrogate be compensated $10,000.00 for her services, the Surrogate was to relinquish the child upon delivery. Upon entering her third trimester, the Surrogate informed the Intended Father that she would not relinquish the child. As a consequence, the Intended Father filed suit, seeking a judgment of maternity and a declaration that the Surrogate breached her contractual obligations under the Surrogate Contract.
Following the filing of the Intended Parent's action, the Surrogate sought her own declaration as to the enforceability of surrogate contracts in Massachusetts. Currently, there is no legislation on surrogacy in Massachusetts. Further, until this recent action filed by a Rhode Island resident against a Massachusetts surrogate, there have been no reported Massachusetts cases involving surrogacy. As with many States, the only laws on the books deal with adoptions arrangements which are very distinguishable from a surrogate contracts.
In a preliminary ruling, the Massachusetts lower court granted temporary custody to the Intended Father until a determination is made as to the Surrogate's challenge as to the enforceability of the Surrogacy Contract. While the Court of Appeal opined that the surrogate contract may be unenforceable, it did rule that the Intended Father was entitled to temporary custody because to withhold custody could preclude the father from ever establishing his paternity. The Court's ruling was based on a Massachusetts' law that states if a child is born to a married woman, her husband is the presumptive legal father. In order to rebut the presumption, the biological father must show a substantial relationship with the child. Consequently, if the Court withheld custody from the Intended Father at this time, it may irreparably harm his as he would never be able to establish paternity. There are, apparently, some unique circumstances involving this particular case which may, ultimately, affect the Court's decision and minimize the significance of the ruling. We will update our readers once a final decision is made.
Infertility Held to Be a Disability Under the ADA
A Federal District Court in Illinois held that infertility is a disability falling under the Americans with Disabilities Act (commonly referred to as the ADA). In rendering its decision, the Court, in a tripartite ruling, concluded that:
· Infertility is a physical impairment;
· Infertility affects a major life activity - reproduction; and
· That reproduction was substantially limited by the condition of infertility.
What would seem to be a common-sense result, in fact has long range implications. If such an argument was accepted in other States, it could conceivably prevent insurance companies from excluding coverage for infertility, as to do so would violate the ADA and related discrimination laws.
Return to Index of the Journal of Assisted Reproductive Law
Last Updated: October 13, 1997
((c) 1997 By Vorzimer, Masserman & Ecoff. All rights
reserved. No part of this publication may be used commercially or
reproduced without prior written permission of Vorzimer, Masserman &
Ecoff. The Journal is published as a service to the Assisted Reproductive
Technology community. The articles are summaries of the law and are not
intended to be used in lieu of legal advice. The authors will, on request,
be pleased to discuss their articles in greater detail.
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