Judge Affirms Right to Contract With Surrogate Mothers

A Superior Court judge in San Diego has determined that people have a constitutional right to enter into contracts for surrogate motherhood--a ruling that lawyers said Friday is unprecedented in California.

The opinion came in a case involving a 6-month-old girl born to a young Mexican woman who had conceived the child for a Chula Vista couple. The woman changed her mind about giving up the girl and is suing for custody.

Judge William Pate found Thursday that “there is a constitutional right to enter into a surrogate contract.” But he postponed until February a hearing and decision on whether the contract in this case is valid.

The lawyers in the case appeared to differ on the ruling’s significance.

Merle Schneidewind, representing Mario and Nattie Haro of Chula Vista, said he found the ruling encouraging and predicted that it might lead to national guidelines governing contracts signed by surrogate mothers.

But Harvey Berman, representing the mother, Alejandra Arellano Munoz, said there is no disagreement on whether such contracts could be legal. He said the disagreement centers on whether the rudimentary “contract” signed in this case is valid.

“I think if you’re going to contract to change the status of a child, you’ve got to have safeguards,” Berman said Friday. “ . . . You must go to (the county Department of) Social Services. You must go to a doctor. You must have a lawyer involved.

“Because the party who is a donor must know what her rights are.” Munoz was 19 years old when the child, Lydia Michelle, was born.

“There are a plethora of issues that were not addressed in this case,” Berman said.

The case arose because Mrs. Haro, the mother of a grown child, was unable to have more children, her lawyer has said. The Haros contacted an aunt of Mrs. Haro’s in Tijuana, who arranged for Munoz to be artificially inseminated with Mr. Haro’s semen.

Berman says the Haros initially said the embryo would be transplanted into Mrs. Haro--a claim the Haros deny. Only after learning in the early stages of pregnancy that no transplant would be done, Berman said, did Munoz balk at serving as surrogate mother.

So, in November, 1985, Mrs. Haro and Munoz signed a seven-line agreement in Spanish stating that the Haros would pay Munoz 840,000 pesos. Under the agreement, Munoz was to relinquish all rights to the child.

Berman contends that the contract is invalid because Munoz acted under duress, in response to what Berman calls the “fraud” involving the transplant. She had no legal counsel or other advice of the sort that would be required if the case were an adoption, he said.

California has no law governing surrogate-parent agreements. Berman notes that a bill introduced in the Legislature last year would have required legal and medical advice and procedures for withdrawing consent, and would have required that the mother be 21 years old.

The bill did not pass.

On Thursday, Pate ordered the lawyers to return Feb. 18 to argue the validity of the contract.

Meanwhile, the child is living with the Haros. Munoz lives with her other child in National City and has the right to visit the child three times a week. Berman said he will ask that custody be shared between Mr. Haro and Munoz “as natural parents.”