In the first California ruling of its kind, a Sonoma County judge has rejected a surrogate mother’s bid to reclaim her son from a couple who paid her $10,000 to bear the child.
Without ruling directly on the legality of surrogacy contracts, Superior Court Judge Lloyd Von der Mehden ruled that the child had been properly adopted and denied Nancy Barrass’ request. He held that Tim and Charlotte Myers of Napa have legal custody of the 2-year-old boy, according to sources familiar with the content of the sealed decision.
The Myerses had signed a contract under which Barrass was artificially inseminated with the father’s sperm. She gave birth Sept 2, 1986, and turned the boy over to the Myerses three days later. Two months later, Barrass legally consented to the infant’s adoption by Charlotte Myers. But last year, she had a change of heart and filed a lawsuit attempting to overturn the adoption.
Even though the outcome of the case did not depend on the legality of the surrogacy contract, the attorney who represented the Myerses said the decision should be encouraging for couples considering surrogate parenthood.
“Legally, I see no impediment for adult parties who have been fully and individually advised to enter into surrogacy arrangements,” said Christian Van Deusen, the Santa Ana attorney who represented the Myerses.
Neither Barrass nor her court-appointed attorney could be reached for comment.
The litigation comes nine months after the Baby M case in New Jersey. Last February, the New Jersey Supreme Court held that surrogate parenting contracts amounted to illegal baby selling but awarded custody to the father and gave the surrogate mother visitation rights.
Only a handful of court cases have tested the legality of surrogacy, a still uncommon route to parenthood that an increasing number of infertile couples are choosing. A congressional report last summer estimated that 1,000 children have been born to surrogate mothers nationwide in the last 10 years.
The result was hailed by Hilary Hanafin, head of the Beverly Hills-based Center for Surrogate Parenting.
‘Court System Works’
“What is exciting is that (the decision) shows the California court system works in a surrogate-parenting case,” said Hanafin, whose center has arranged 79 surrogate births in the last eight years.
‘The judge treated the case like any other adoption case. He did not contort the case because it was a surrogate-parenting case,” Hanafin said.
Barrass’ lawyers sought to show that Barrass was coerced into the adoption by the surrogate-parenting contract. Barrass asked the judge to find that withdrawal of her consent was reasonable and that an award of custody to her was in the best interests of the child.
Von der Mehden noted that Barrass had the benefit of legal counsel before signing the adoption consent and ruled that taking custody from the Myerses would be disruptive, according to persons familiar with the decision.
The Barrass surrogacy was arranged through a Bay Area group, the Center for Reproductive Alternatives of Northern California in Pleasant Hill. The contract called for a $10,000 payment to Barrass after the birth to compensate her for lost wages and other expenses. The wording of the agreement may have been a key to Von der Mehden’s decision, Van Deusen said. So long as contracts are not interpreted as selling babies or paying for consent, they should withstand legal attack in California, Van Deusen said.