R.R. v. M.H.
689 N.E.2d 790 (Mass. 1998).



Facts: R.R. (P) and M.H. (D) entered into a surrogacy agreement. Both parties are married, but not to each other. The agreement provided that: (i) D would become pregnant through artificial insemination with P's sperm; (ii) P would have full parental rights; (iii) D would permit P to take the child home from the hospital to live with him and his wife; (iv) D would retain her parental rights, but if she sought to obtain custody or visitation, she would forfeit her rights and would be obligated to reimburse P for all fees and expenses paid to her; and (v) P would compensate D in the amount of $10,000, paid in installments, "for services rendered in conceiving, carrying and giving birth to the child." During D's sixth month of pregnancy and after she had received some of the payments, she informed P that she had changed her mind and decided to keep the child. D returned most of the payments. P filed suit to enforce the agreement and obtained a preliminary order, awarding him custody. D appeals.


Issue: Are surrogacy agreements void if they require the payment of money for custody?

Rule: Surrogacy agreements are void if they require the payment of money for custody.


Holding: Yes, but a declaration is entered that this agreement is not enforce-able. The father brought an action against the mother after the mother breached a surrogate parenting agreement. The lower court awarded the father temporary custody of the child and granted a preliminary injunction in favor of the father. The mother sought review. On appeal, the court reversed and held that no private agreement concerning adoption or custody could be conclusive because a judge, passing on custody of a child, must have decided what was in the best interests of the child. The court also held that an agreement in which a woman agreed to become a surrogate or to relinquish her rights and duties as parent of a child thereafter conceived through assisted conception was void.

Reasoning: The court reversed the preliminary injunction in favor of the father and ordered a declaration that the surrogacy agreement was not enforceable.