DES MOINES, Iowa — An Iowa woman is asking the U.S. Supreme Court to consider striking down surrogacy contracts as a violation of the constitutional rights of mothers and their babies.
In an appeal of a February Iowa Supreme Court ruling, a Muscatine woman is asking the nation's highest court to take the case and hear arguments and then find that a surrogate mother does not waive her constitutional rights and those of her future child when she signs an agreement to have a baby for another couple.
The woman, identified in court documents only as T.B., is challenging a ruling that concluded for the first time in Iowa that gestational surrogacy agreements are enforceable. The Iowa court said banning such arrangements would deprive infertile couples of perhaps the only way to raise their own biological children. The court ruling meant the woman was legally not the parent of the now-23-month-old girl to whom she gave birth.
Gestational surrogacy is the practice of a woman agreeing to take payment to have a baby for a couple using eggs and sperm from the intended parents or donors. The birth mother is not biologically related to the baby. Several courts have found only individuals biologically tied to the baby are the legal guardians and custodians. Several states, including Iowa, California, New Hampshire, Virginia, and Washington, have laws that prevent women from asserting these protections after signing surrogacy contracts.
The surrogate mother's attorney, Harold Cassidy, filed an appeal application to the U.S. Supreme Court in May, and on Tuesday the attorney for the Iowa couple who have raised the girl since her birth, Paul and Chantele Montover, filed an objection to the court taking the case.
The court is likely to decide this fall whether to consider it and hear further arguments.
Cassidy said the woman isn't seeking custody of the child, but wants to have some sort of a relationship with her. He said the goal of the case is to help protect other women and children going forward.
Cassidy argues that children have a right "to be free from commodification and sale" and mothers have a right to be free from "state promoted and state-enforced exploitation." He equated surrogacy agreements to "slavery or involuntary servitude."
"A minority of states enforce these contracts, but before this goes any further the courts need to review the constitutional issues both in respect to the rights of the children and with respect to the rights of the mother," Cassidy said. "It's been a long time since we declared we're not going to enforce or adhere or sanction the buying and selling of a human being of any kind, yet that's what this is."
Casey Rigdon, the Montovers' attorney, argued in court filings that the Supreme Court should reject the case because it "has never protected the alleged relationship between gestational carrier and the child she delivers."
He said the surrogate mother cites no federal law or precedent that even suggests traditional protection of this sort of relationship. He also argued that the woman entered the contract voluntarily and was fully informed.
Iowa, like many states, has no clear law on surrogacy parenting, but a 1989 Iowa law making it a felony to sell an individual to another person specifically exempts surrogate mother arrangements. The Iowa court interpreted that as legislative intent to allow such agreements.
The woman reached an agreement with the Montovers to have a baby for them after reading their Craigslist advertisement in 2016. The Montovers had decided at age 50 that they wanted to raise a child together. They agreed to pay the woman $13,000 to have a baby using an egg from an unknown donor and Paul Montover's sperm.
After the relationship between the Montovers, who are white, and the surrogate mother, who is black, deteriorated to the point at which she said she and her husband were called racial epithets, the woman decided to reject payment and keep the infant.
The baby was 2-months-old and still in the hospital being treated for medical complications related to her premature delivery when a judge awarded Paul Montover custody. The Iowa Supreme Court ruling this year gave the Montovers permanent custody.