ENFORCABILITY OF CONTRACTUAL WAIVERS OF CONSTITUTIONAL RIGHTS BY GESTATIONAL SURROGATES

1. ENFORCABILITY OFCONTRACTUAL WAIVERS OFCONSTITUTIONAL RIGHTS BYGESTATIONAL SURROGATES MARRIAGE AND TRAVEL March 24, 2012 ACAL/ACFFL Seminar © 2012 The Law Offices of Cynthia E. Fruchtman

2. TOPICS TO BE ADDRESSED • Federalism and States’ Rights • Restrictions on the Constitutional Right to Travel • Restrictions on the Constitutional Right to Marry © 2012 The Law Offices of Cynthia E. Fruchtman

3. Federalism and States’ Rights • States have the right to create their own family law. • U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) • States have their own laws on surrogacy • Law where the surrogate lives and delivers (usually same) governs • Surrogacy is either legal or there are no laws in 44 states • Surrogacy is not permissible in New York, New Jersey, Michigan, Washington, Delaware and Nebraska, Washington, D.C. © 2012 The Law Offices of Cynthia E. Fruchtman

4. Courts where surrogacy is legal uphold the validity of contract • Johnson v. Calvert, 5 Cal.4th 84, 851 P.2d 77 (1993) (gestational carrier agreements binding, intent of parties governs) • In re Marriage of Buzzanca, 61 Cal.App.4th 1410, 72 Cal. Rptr. 2d. 280 (1998)(unrelated parents of child born through surrogacy still responsible for child) • J.F. v. D.B., 589 Pa. 739 (2006) (egg donor surrogacy contracts binding, carrier not the legal parent) • In re Paternity and Custody of Baby Boy A, No. A07-452, 2007 WL 4304448, at *1 (Minn. Ct. Appl. 2007) (gay father entitled to full rights to child born through gestational surrogacy). © 2012 The Law Offices of Cynthia E. Fruchtman

5. Courts where surrogacy is not permitted find contract unenforceable • A.G.R. V. D.R.H. & S.H., No. FD‐09‐001838‐07 (N.J. Super., Ch. Div. 2009)(gave half custody of child to gestational carrier) • Unpublished probate court case, Washtenaw County, Michigan, December 2009(gave full custody of twins to gestational carrier) © 2012 The Law Offices of Cynthia E. Fruchtman

6. CONFLICTS OF LAW R.R. v. M.H., 426 Mass. 501, 689 N.E.2d 790 (1998) Hodas v. Morin, 442 Mass. 544, 814 N.E.2d 320 (2004) Contracts prohibit travel between states during the last trimester to avoid delivering in bad state Not safe to work with a woman who resides in one state and plans to deliver in another unless both are good for surrogacy. • Since state surrogacy laws differ, restricting surrogate travel is important • Law of the state where the surrogate delivers governs 1st, then law where she lives (if different). © 2012 The Law Offices of Cynthia E. Fruchtman

7. Intended Parents with unusual situations need to be careful. • Only about 20 states allow heterosexual couples who are using an egg donor to have both Intended Parents names appear on the birth certificate. • Only about 12 states allow gay male couples to have both their names appear on birth certificate. • Only 5 states allow a couple or single if not genetically related to the child to have their names on the birth certificate without a full adoption: • California, Georgia, Connecticut, Minnesota and Arkansas. © 2012 The Law Offices of Cynthia E. Fruchtman

8. Restrictions on the Constitutional Right to Travel It is unclear if the travel restriction, even if agreed to by all parties in a contract, would be enforceable in a court of law. © 2012 The Law Offices of Cynthia E. Fruchtman

9. Case law establishes a right to travel in many circumstances. • Saenz v. Roe, 526 U.S. 289 (1999) (impermissible residency requirement imposed to be eligible for Temporary Assistance to Needy Families) • Doe v. Bolton, 410 U.S. 179 (1973) (impermissible residency requirement to partake of state’s abortion benefits) • Shapiro v. Thompson, 394 U.S. 618 (1969) (impermissible residency requirement to partake of state’s welfare benefits) • U.S. v. Guest, 383 U.S. 745 (1966) (impermissible restrictions imposed by states on Negros affected their rights to travel between states) • Edwards v. People of State of California, 314 U.S. 160 (1941)(impermissible restriction on the free interstate passage of the indigent basing the federal right of interstate travel on the Commerce Clause) • Smith v. Turner, 48 U.S. 283 (1849)(statute imposing tax on citizens traveling into state deemed impermissible restriction on travel). © 2012 The Law Offices of Cynthia E. Fruchtman

10. Is the right to travel recognized in these cases relevant to surrogacy? • Challenge to the restrictions on travel imposed by surrogacy contracts has not arisen, to my knowledge, in the court system to date • Surrogacy situation is different than those in the cases cited: • Restrictions on travel made by contract, not by statute • Both parties, each represented by counsel, are entering into a voluntary agreement and accepting travel limitations • There is a compelling reason for the limitation, since the Intended Parent(s) could lose their right to both be treated as parents if this provision were not enforced. • The provision is limited in time and does not impinge on the gestational surrogate’s other rights. © 2012 The Law Offices of Cynthia E. Fruchtman

11. Restrictions on the constitutional right to marry A gestational surrogate’s marital status can significantly impact whether a foreign country will recognize the child as a citizen. © 2012 The Law Offices of Cynthia E. Fruchtman

12. Reason to restrict gestational surrogate from altering her marital status • UK - Child deemed to be the child of a married gestational surrogate and her husband. • Netherlands- Requires that a gestational surrogate be married and a pre-birth order be entered terminating her husband’s parental rights, placing the Dutch father on the birth certificate. Must Dutch mother adopt? • Restrictions on altering one’s marital status during the term of the surrogacy agreement might read as follows: • CARRIER is hereby informed that she may not marry while this Agreement is in effect, as United Kingdom law assumes that the husband of any married woman is the father of the CHILD. This assumption is not rebuttable even with evidence that CARRIER was carrying CHILD for INTENDED PARENTS, to which CHILD neither she nor her husband is related. Marriage during the course of this surrogacy will be a material violation of this Agreement entitling INTENDED PARENTS to cease payment to CARRIER. © 2012 The Law Offices of Cynthia E. Fruchtman

13. Such a restriction may violate the Constitutional Right to Marry. • Not found in the Constitution itself but in the penumbra of the constitution. • Loving v. Virginia, 388 U.S. 1 (1967)(The United States Supreme Court held that miscegenation statutes adopted by the State of Virginia to prevent marriages between persons solely on basis of racial classification violate equal protection and due process clauses of Fourteenth Amendment.) • Gill et al. v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010)(Section 3 of Defense of Marriage Act permitting states to deny recognition of gay marriages from other states found unconstitutional based on the Fifth Amendment, equal protection, and the federal government's historically consistent deference to state definitions of marriage under the due process clause. © 2012 The Law Offices of Cynthia E. Fruchtman

14. Is the right to marry recognized in these cases relevant to surrogacy? • Challenge to the restrictions on marriage imposed by surrogacy contracts has not arisen, to my knowledge, in the court system to date • Surrogacy situation is different than those in the cases cited: • Restrictions marriage made by contract, not by state statute • Both parties, each represented by counsel, are entering into a voluntary agreement and accepting travel limitations • There is a compelling reason for the limitation, since the Intended Parent(s) could lose their right to both be treated as parents if this provision were not enforced. • The provision is limited in time and does not impinge on the gestational surrogate’s other rights. © 2012 The Law Offices of Cynthia E. Fruchtman

15. Thank you! Cynthia E. Fruchtman LAW OFFICES OF CYNTHIA E. FRUCHTMAN 2530 Wilshire Blvd., Suite 310 Santa Monica, CA 90403 ph: (310) 829-0678 fax: (310) 829-5923 E-mail: cyndicus@aol.com www.fruchtmanlaw.com © 2012 The Law Offices of Cynthia E. Fruchtman