A lesbian who made an informal agreement with another woman to have a baby for the lesbian and her partner can keep the baby even though the biological parents object to the way she’s raising him, the Massachusetts Appeals Court has ruled.
The state’s second highest court cautioned that the “terribly unfortunate case” does not set a precedent for future informal surrogacy arrangements and urged the Massachusetts Legislature to enact a statute dealing with such cases.
The story begins around early 2017 when a woman in a same-sex relationship posted on Facebook:
“[W]ho wants to pop out a baby for my fiancé and I?!”
An unmarried woman in a long-term relationship with a man who already had two children with him responded on Facebook offering to conceive and bear a new child for the lesbian inquirer and her partner. The two women didn’t know each other, but were Facebook friends because the lesbian’s partner and the unmarried heterosexual woman had been in third grade together.
Both sides were worried about the cost and complications of hiring lawyers. So the arrangement, made entirely on Facebook, was what the state’s Appeals Court eventually called “an utterly informal agreement.”
According to court documents, the lesbian explained online that she couldn’t have a baby – “My body is too bad for a pregnancy and I’m on meds and such that I can’t come off …” — and that her partner “can’t even have kids so this really is our only option.”
The would-be surrogate mom didn’t want money for the deed. On Facebook she explained (verbatim): “Like I would hate if I couldn’t have kids and had to go through so much and for it to be way expensive just to have a baby. I have a boy and a girl so I’m Good. I feel bad for couples who can’t have baby’s when they want a family so bad. They have to go through so much, but yet people who dont even want kids just pop them out like it’s nothing lol.”
(“Lol” stands for “laugh out loud” in online abbreviation.)
The woman and her boyfriend started trying to conceive a baby sometime after St. Patrick’s Day, according to the Facebook messages. They succeeded. Both sides agreed during the pregnancy that the child would be the lesbian’s and her partner’s. All four adults were present for the birth in December 2017.
The harmony broke down sometime during the following several months.
As planned, the baby boy left the hospital with what the court calls “the intended mother” – meaning the lesbian. But the lesbian’s partner had never wanted a baby, and she broke up with the woman who did. The “intended mother” showed signs of mental health problems, including depression and anxiety. The baby at two and a half weeks contracted a respiratory virus, probably from playing with the daughter of the intended mother’s housemate. And the woman left the baby with her housemate to attend a concert in Pennsylvania and to go to a strip club with her partner’s aunts.
The last straw for the biological mother seemed to be when MassHealth, the state’s government-funded health insurance program for poor people, mistakenly put the newborn baby on the biological mother’s health insurance account and kicked out one of her older children.
“This greatly upset the biological mother,” wrote Justice Peter Rubin in the Appeals Court decision, “and she sent a Facebook message to the intended mother telling her to ‘adopt’ the child immediately or ‘give him back’.”
About four and a half months after the birth, the biological mother went to court seeking to get the baby boy back.
The biological mother criticized the would-be adoptive mother on Facebook, which later disturbed judges who ruled on the case, including a Family and Probate Court trial judge in Hampden County, which is in western Massachusetts.
“We have been watching out for him, unlike you,” the biological mother wrote on Facebook, addressing the lesbian would-be adopter. “You want to call yourself a mom, but all you care about is yourself. He belongs with his real family instead of in a home where he’s just used to play house.”
In August 2018, when the baby was about 1 year 8 months old, a brick was thrown through the intended mother’s window with a note saying “[H]e is mine.” The trial judge “drew the reasonable inference,” based on the behavior of the biological father of the baby, that the father threw the brick, the state’s Appeals Court said.
The biological mother and father married on January 1, 2019, despite difficulties in their relationship, including infidelity by the woman about a year before the marriage that led the man to threaten to kill himself.
The couple lived apart for several months even after their marriage and seemed on hostile terms during the court proceedings concerning the dispute over the child, according to court papers.
The trial judge who heard the case found it shocking.
“She found that the biological parents conceived a child neither of them wanted in order to give the child to virtual strangers,” the Appeals Court decision states.
The trial court judge noted that the biological mother and father never sought visitation rights or any other kind of rights before or immediately after the birth of the boy, and the judge couldn’t follow the logic of their legal attempt to get the baby back several months later, finding that it “was just as capricious as their original decision to have him and give him away.”
The trial judge found that both biological parents were unfit to care for the baby. The judge also found that the would-be adoptive mother had provided the only parental figure the child had known after birth. The judge ruled that the child should stay with the would-be adoptive mother.
The Appeals Court this week upheld the trial judge.
“Although this is an exceedingly difficult case because of the high burden involved in terminating a parent’s rights with respect to his or her child, we conclude that the facts found by the judge are sufficient to demonstrate the unfitness of both biological parents to parent this child by clear and convincing evidence,” Justice Rubin wrote for the Appeals Court.
The court decision uses a pseudonym for the child and does not include the names of the biological parents or the lesbian or the lesbian’s former partner.
Lawyers involved in the case representing the biological mother, the biological father, the guardian, and the child could not immediately be reached for comment on Thursday afternoon.
The biological parents may appeal the decision to the Massachusetts Supreme Judicial Court, which is the state’s highest court.
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