Surrogacy via social media: in Massachusetts, two women have been unable to share a child for three years

When a Massachusetts couple learned that none of them could bear a baby, the women turned to their Facebook friends for help. What came of it, said the publication Independent.

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Facebook Arrangement

“Who wants to carry a baby for my fiancée and me?” — a woman from Massachusetts posted on Facebook in early 2017.

She soon received a personal message.

“If you and the bride are serious about having a baby, then I will do it,” wrote a woman who said she was childhood friends with the bride.

She offered to conceive a child with her boyfriend and hand over custody to women so that they could raise the child as their own. Women will not have to pay her or pay for medical expenses, she said.

“I hear some people say they can’t do it, or it would be heartless to just give up the baby,” she continued. “But it’s not because it will help other people.”

Without meeting in person or using lawyers, the women, whose names are not listed in court documents, agreed to what they considered to be informal surrogacy. But relations between the parties soured after the birth of the baby in December 2017, when the biological parents decided they wanted to get the baby back.

Courts

This was followed by a fierce custody battle that escalated into bitterness and hostility. The trial is still ongoing three years later. The latest development happened on July 22, when a state appeals court ruled in favor of a Massachusetts woman after a trial judge ruled that her biological parents were unfit to care for a child.

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The case, designated in court records under a pseudonym as "Custody of Keanu," baffled the judges of the appellate courts, who reproached both sides for their unconventional approach to conceiving a child.

“It's tragic. Horrible,” one judge said during the hearing. - I have no words for this case. But it must be decided for the benefit of the child in an appropriate way.”

Although legal experts say Custody of Keanu is far from textbook surrogacy because the child was conceived through intercourse rather than assisted reproduction. The case highlighted the state's glaring lack of surrogacy laws and, according to oversight experts, puts Massachusetts children at risk.

For two decades, state judges have been calling for a law that would define surrogacy and set out how to determine who is considered a parent of a child in a dispute, according to Polly Crozier, a senior attorney at the nonprofit GLBTQ Legal Advocates and Defenders.

“I don’t think this situation could have unfolded the way it did if there had been clarity,” Crozier said.

Courtney Jocelyn, a law professor at the University of California, Davis, noted that twenty other states also lack laws governing surrogacy. But human rights activists are trying to change that and make the new legislation gender-neutral given the rise in the number of same-sex couples using surrogacy to start a family.

How the situation developed

But as for the boy born in 2017, the Massachusetts court was left without special instructions to decide who should raise the child: the mother who gave birth to him, or whoever raised him?

Before the relationship between biological parents and a woman from Massachusetts, known by court documents as the "supposed mother", turned toxic, both sides were friendly in Facebook posts.

The birth mother sympathized with the couple's situation and understood that the usual routes to same-sex parenthood—adoption, fertility treatment, sperm donation, and surrogacy—can be expensive. But she offered to carry the baby for free and said her insurance would cover all medical expenses.

“I know you guys will make great parents,” the birth mother wrote.

They agreed that the intended mother and her fiancée would attend the birth and tell the baby about his biological mother when he grows up. The biological mother also noted that she was not very attached to the relationship with the child.

“Honestly, I will give birth for both of you, the baby will be in your life,” she said in Facebook messages.

“I have a boy and a girl, so I’m doing well,” she added.

In the days that followed, the alleged mother consulted a lawyer but ultimately did not hire him. After this consultation, the biological mother sent a message to the adoptive mother, in which she said that there was no need to be afraid, but the agreement could be complicated.

“I don’t care what the lawyer says,” the birth mother wrote. “I will give birth to a child for this couple, end of story.”

A few days later, although the two women had yet to meet in person, they agreed that it was time for the biological parents to try to have a child.

“We'll give it a try after the weekend in St. Patty,” the birth mother wrote.

About four weeks after the first Facebook post, she posted a photo of a positive pregnancy test.

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“God, I’m going to die of excitement,” the alleged mother responded.

According to the court records, the women kept in touch via Facebook on Messenger throughout their pregnancy. It's unclear if they ever spent time together before their biological mother gave birth on December 13, 2017.

Investigation commenced

According to court documents, upon discharge from the hospital, the biological parents immediately transferred the newborn boy to the future mother. After witnessing the transfer, the hospital filed a neglect complaint with the Department of Children and Family Affairs, which initiated an investigation. After visits to the homes of both families, the department "concluded that it had no problems with either of the families," court documents say.

But on December 14, the alleged mother and her fiancée applied to become legal guardians of the child, and the biological parents signed documents confirming their consent. Guardianship was the only route the couple could take as Massachusetts law requires prospective parents to have a child in custody for at least six months before applying for adoption.

But her adoptive parents' situation changed during the first month of her childcare. According to court documents, she and her fiance broke up and she began to struggle with depression and anxiety. Knowing these facts, the biological parents were brought before a judge and transferred custody of the child.

In the following months, the biological parents did not try to visit the child or ask about his well-being, Heather-Jill Williams, a lawyer for the foster mother, said in an oral conversation.

A few months after the birth, the biological mother noticed that the hospital had passed on her health insurance policy to the child, as a result of which her oldest child was excluded from her plan. According to court documents, the change was a technical error.

But the mistake provoked a sharp change in the feelings of the biological mother towards the adoptive mother.

“This made the birth mother very upset and she sent the adoptive a message on Facebook telling her to 'adopt' the child immediately or 'give him back,'” court documents state. But the adoptive mother could not adopt the child because she did not yet have the required six months.

When the child was about four and a half months old, the biological mother filed a petition to terminate custody. A month later, the biological father did the same - both wanted custody of the child. According to court documents, the biological parents argued that the adoptive mother was unfit to care for the child. They accused her of making questionable choices, such as taking the baby to a nail salon when he was 2 months old and leaving him with a housemate so she could go to an out-of-state concert.

Months passed, the biological parents' petition to end custody remained without consideration, and all this time the boy remained with his foster mother. According to court documents, in July 2018, when the child was 8 months old, she applied for adoption.

But as the lawsuits dragged on, the biological parents became more and more nervous. The biological mother publicly denounced the adoptive mother on Facebook, calling her "selfish." She also claimed that she had a stronger bond with the baby because, according to the documents, she wore it.

“He belongs to his real family, not to the house where he just played,” she wrote on Facebook.

In August 2018, someone threw a brick at the alleged mother's window with a note that said, “He's mine,” referring to the child. The trial judge concluded that the biological father had thrown the brick.

It's unclear if biological parents stay together. According to court records, they got married in 2019 despite a rocky relationship.

“Even after the wedding, they continued to live separately for several months, and the biological parents had separate counsel during the trial. They sat separately and practically did not look at each other,” the appeal court wrote in its decision.

Court

In May 2019, the Massachusetts Probate and Family Court merged the cases, considering both the adoptive mother's petition for adoption and the individual biological parents' requests to regain custody. Both the biological parents and the child were provided with lawyers through the court.

The judge ruled in favor of the adoptive mother, noting that she was the only mother the three-year-old boy had ever known and that the biological parents were unfit to care for the child. The judge found that before the trial began, his biological parents had not attempted to visit him and had never inquired about his health or well-being.

The biological mother appealed the decision to the Massachusetts Supreme Court. No decision has been made yet.

Lawyer Jacqueline Parker, who represented the child's interests, said the biological parents "physically and emotionally abandoned the child" and demonstrated "a negligent disposition to place the child in the care of someone they knew only on Facebook."

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“The father put the child at physical risk by throwing a brick through the guardian’s window,” Parker said. “The mother exposed her child to potential harm because of her Facebook posts.”

The appellate judges were interested in the legal precedent in the case. But due to the lack of relevant laws in Massachusetts regarding surrogacy and paternity (the legal relationship between parent and child), the court had to improvise.

“This case is truly stunning,” said Janet Halley, a Harvard law professor. “The court had no law to apply.”

While “custody of Keanu” is unique, having legal rules would help judges determine who is entitled to the child, Parker said, and would not put the child's future in limbo while the custody dispute was being played out in court.

During this time, according to Parker, "the child contacts his guardian." She is convinced that without legislation there is no mechanism for verifying the suitability of prospective parents.

The judges ultimately decided the best approach was to assess whether the biological parents were capable of caring for the child.

According to Parker, custody, which is often used when parents assign someone to care for their child in the event of death or disability, is not ideal for the case. If biological parents want to return their child, she said, it is likely that they will succeed, "unless the parent can provide clear and convincing evidence, and the burden of proof lies on the side opposing the biological parent."

Parker argues that in Keanu's case, weaning the boy from his foster mother could harm his mental health and cause other behavioral problems.

“I would say it is in the best interest of the child to place him forever in the same family, in the same home that he has ever known,” said Halley, the Harvard law professor.

The court's decision

The Court of Appeal agreed and on July 22 ruled that the biological parents were unfit to care for the boy, although one judge noted that the whole situation was dire.

“I am concerned that the parties put a child in such danger,” he said. “But both sets of potential parents here are far from ideal.”

Massachusetts is closer than ever to enacting surrogacy laws and updating parental rights laws, according to Keith Weldon LeBlanc, executive director of Resolve New England, who partnered with GLAD to get the law passed as the legal battle moved forward. She expects the legislature to vote on the bill before the end of the session next July.

“Until such legislation is enacted, this case will serve as a cautionary tale about the risks of informal surrogacy,” the appellate judges wrote in their decision.

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