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R.R. v. M.H. & another | 689 N.E.2d 790 (1998)
The case of R R versus M H and another concerns a married couple who got embroiled in the complexity of a surrogacy agreement, a surrogate’s change of mind, and the resulting custody dispute.
R R and his wife were in their forties and had despaired of ever becoming parents when they discovered the New England Surrogate Parenting Advisors, or NESPA, a for-profit company that matched couples with possible surrogate mothers. NESPA matched R R and his wife with M H, a married woman with two children.
The initial meeting went well, so NESPA had them all evaluated by a clinical psychologist. The psychologist concluded that M H, or the birth mother, wasn’t motivated by money and that she’d have no trouble relinquishing a child.
The parties signed a surrogacy agreement under which the birth mother agreed to be inseminated with the sperm of R R, or the father, and to relinquish any resulting child to the custody of the couple. The father would pay the birth mother ten thousand dollars in periodic payments for, quote, “services rendered in conceiving, carrying and giving birth to the Child,” unquote. The agreement stated that the birth mother wasn’t being paid for consenting to give the child up for adoption or the termination of her parental rights, and that she would have to pay the father back if she refused to let him take the child home from the hospital.
The birth mother became pregnant and accepted the first two payments. When the father sent her a third check, however, she returned it. She said she’d changed her mind and wanted to keep the child.
The father sued the birth mother. He alleged breach of contract and sought a declaration of his rights under the surrogacy agreement. The birth mother filed a motion to determine whether surrogacy contracts were enforceable in Massachusetts. The trial judge determined that the surrogacy contract was likely enforceable and granted the father temporary custody. The parties eventually came to their own agreement about custody and visitation, but the Massachusetts Supreme Judicial Court decided to consider the case to resolve the issue of the enforceability of a surrogacy agreement.
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