Iowa Supreme Court hears argument: Who are Baby H's parents?

The question of who is the legal parent of "Baby H" was argued in the Iowa Supreme Court on Wednesday, the first time it has addressed sticky issues on gestational surrogacy law.

In 2015, Paul and Chantele Montover of Cedar Rapids entered a contract with a gestational carrier from eastern Iowa. A child was created with Paul Montover’s sperm and a donor egg and the surrogate agreed to carry the child, give birth and surrender the child to the Montovers in exchange for $13,000.

But the carrier, who is identified only by initials T.B in court documents, decided to keep the child after she became troubled with the conduct of the Montovers.

The child was born Aug. 31, 2016, and she was later ordered to surrender the child after the Montovers found out about the birth. In District Court in Linn County in February, a judge ruled the gestational agreement was enforceable and didn’t violate Iowa public policy or the constitutional rights of the birth mother or the baby. The Montovers were given custody.

After an appeal, the Montovers told their story to the Des Moines Register.

Attorney Harold Cassidy, a well-known New Jersey lawyer on surrogacy laws who is representing T.B., told the justices that the lower court’s decision would set up a dangerous precedent — the commodification of children.

“Is Iowa ready to go down that irrevocable path to say we can buy and sell children?” he asked. “This is worse than the selling of children, it is the manufacture in advance of conception for the purpose of selling the child. If that’s not (an) exchange of money for a child I don’t know what is.”

By statute, surrogacy is legal in Iowa and 44 other states, but many legal questions remain. Iowa doesn’t have a code that lays out gestational agreements in detail. However, Iowa Code 710.11, which deems it a felony to attempt to purchase or sell another person, specifies that “this section does not apply to a surrogate mother arrangement.”

Cassidy said that gestational surrogacy contracts are not enforceable in Iowa because the Iowa Legislature isn’t clear on the subject.

Justices asked Cassidy several questions on another central question in the case: What makes a mother a mother?

“Just because you carry a child, does that make you a mother?” asked Justice David Wiggins.

Cassidy said that while the carrier of a child isn’t its genetic mother, it shares a biology and bonding through the pregnancy process. A birth mother’s name is also placed on a birth certificate.

“The (lower) court has said we want a class of children with no mother,” he said.

Philip De Koster, the Hull attorney representing the Montovers, centered his arguments on the legality of the contract and an indisputable fact — the only genetic parent in this equation is Paul Montover.

“We’re not selling children. The gestational carrier is being compensated for her services in gestation. The genetic material was always in the possession of the (Montovers) to start off with. They would have never given it to (T.B.) had they known their child wouldn’t be coming back to them.”

De Koster said prior cases showed that just because the child was produced in non-traditional means, it doesn’t mean there are not legal rights established.

The justices asked what the legal basis for the contract is.

Justice Edward Mansfield said he was bothered by the fact that in adoption there are “all kinds of legal hoops that have be gone through and all kinds of due process,” but in surrogacy there are few. “Isn’t that a strange way for the law to work?”

“There is no Iowa law that says the biological mother is the same woman who carried the child,” De Koster said. “There is never an equating of those two things in the law. So we have to look at the legal rights. Parental rights arise out of blood relationship and acting on that relationship.”

The court said that the law does allow for the prevention of contracts that violate public policy, when certain rights should not be bargained away. That brought up the question from justices of exploitation of women who could be coerced into such a contract.

De Koster cited a California case which said “the suggestion that a woman doesn’t have autonomy over her body to make this economic choice harkens back to a time when they didn’t have economic rights.”

“This court shouldn’t intervene to say that you shouldn’t enter into that contract about your body,” he said.