Disputes in family law can be emotionally difficult and legally complex in any family. That goes double when the family relationships involve surrogacy.
A highly unusual recent case shows just how complicated the personal and legal issues can become.
Foreign student seeks surrogate
The case involves a 20-year-old Chinese college student who was studying in the United States. The student, who is gay, decided he wanted to become a father, and a California surrogacy agency matched him with a Montana woman who was willing to act as a surrogate. The parties signed all the appropriate paperwork and contracts, establishing that the student and his partner would be parents and the surrogate would not have parental rights.
The student and his boyfriend moved to Montana in late 2019 to be near the surrogate and planned to live there temporarily to take care of the newborn child. The student’s mother planned to travel to the United States to help, but then — in an unforeseeable bit of bad timing — the global health emergency got in the way of that plan. Instead, the surrogate offered to help the student.
At the surrogate’s invitation, the student and his boyfriend moved into her home with the baby. Soon afterward, the surrogate suggested that she and the student get married in order to keep him on her health insurance and help him keep his green card.
The two married after signing a premarital agreement, which among other things, specified that the surrogate had a parent-child relationship with the baby.
The legal battle
As one might have guessed, this marriage did not last. By fall 2020, the surrogate had kicked the student and his boyfriend out of her house, while keeping the baby. She filed paperwork for divorce and sought primary custody of the child.
A trial court found that the prenuptial agreement gave the surrogate parental rights. The student appealed.
In a 58-page opinion, the Montana Supreme Court recently ruled in favor of the student. It found that the pre-birth contracts established that the student and his partner were parents, and that the prenuptial agreement was not sufficient in itself to give the surrogate parental rights.
As we noted above, this case is highly unusual. Most surrogacy arrangements take off without any legal hitches. However, this case shows that the legal issues can get very messy very quickly. It’s crucial to have legal guidance throughout the process.
