Sunday, 10 August 2008

US: Gestational surrogacy agreements

One of the issues I have discussed with lesbian clients recently who are contemplating making babies is whether to go through an IVF clinic or to have known donors. If the latter, does the donor get recognised in some way?

An obvious issue from a long time family lawyer like me is that usually there is little point entering into an agreement if it is not enforceable. If it ain't binding, why try? However, long experience has taught me that in some cases, even if the agreement isn't binding, sometimes there can be benefits in creating an agreement.

For example, many years ago I acted for a mum who was in the Family Court asking for her kids to live with her(back then we called it custody, I am just trying to keep up to date with the jargon). She said that she had felt forced to leave the town in which she and her ex and the kids lived, and now sought the help of the court in getting the kids back.

It was at this moment that we had the Perry Mason surprise moment- which is why I say to clients: "I don't like surprises." The other side produced a stat dec by my client to Centrelink saying that she had agreed that the kids were to live with their dad. Thsi document was not a binding agreement, but was clear evidence of the intention of my client. Round one to dad- the court had no hesitation that day in ordering that interim custody was with dad (some months later I might add she was successful and the kids ended up with my client).

Now in Connecticut we have had the issue litigated about gestational surrogacy agreements.

The issue is whether the gay couple can be recognised on the birth cert
ificate as the parents. In two cases they were, and in the third, they were not.

So the agreements may or may not be valid, but the intention of the parties was clear- for the gay couples to have children and to be recognised on the birth certificates as parents.

Let's see how it pans out.

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