Mon | Oct 23, 2017

Percentage by contract

Published:Monday | November 30, 2015 | 12:00 AM

Typically, when people discuss parentage, they do so in the context of a biological or genetic connection between an adult and a child or the establishment of that connection through adoption. However, today, modern medicine has forced us to reconsider those traditional notions because more and more children are the product of surrogacy or other contractual arrangements.

In a previous article, I confirmed that Jamaica has no legislations that deal with the issue of surrogacy, although there is evidence that surrogacy arrangements are being made here. The reality is that Jamaica is not unique in that regard, and a decision from the Pennsylvania Appeals Court confirmed that fact, as reported on yahoo.com - 'Court: Sherri Shepherd can't get out of surrogacy contract'. The report stated that Shepherd was "found legally responsible for a child born to a surrogate she and her ex-husband hired before they divorced".

The full judgment of the court makes very interesting reading. On the proposed mother's behalf, it was argued that:

• Pennsylvania law does not provide for parentage by contract.

• The surrogacy contract was an unlawful means of circumventing the statutory adoption procedure which could make a non-birth mother a parent, since the surrogate was the parent of the baby.

• The contract signed between the proposed parents and the surrogate impermissibly provided for compensation to the surrogate for releasing custody of the baby.

• Alternatively, if the surrogate had no parental rights to relinquish, the proposed mother could not have fulfilled her contractual responsibilities to become the baby's legal mother under the doctrine of impossibility of performance.

• The contract violates public policy because it purports to create a child-parent relationship without an adoption or judicial oversight.

• The surrogacy contract is void and unenforceable as against public policy.

In ruling against the proposed mother, the court found that:

• The proposed mother freely entered into the gestational carrier contract and related agreements, which unambiguously stated that she and her then husband were the intended legal parents of baby.

• Those agreements made clear that the surrogate would have no parental rights or obligations with respect to the baby, and her sole role was that of a gestational carrier. In the year leading up to the pregnancy and for months after the pregnancy was confirmed, the proposed mother's actions were consistent with her declared intention to be the baby's mother.

• The baby would not have been born but for the intended mother's actions and express agreement to be the child's legal mother.

• The Adoption Act is not the exclusive means by which an individual with no genetic connection to a child can become the child's legal parent; and nothing in the Adoption Act evinces a "dominant public policy" against the enforcement of gestational carrier contracts.

• The contract was not void as against public policy because, to be enforceable, the policy would have had to be [obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring [that the contract is against public policy].

Effectively, the appeals court upheld the ruling by the trial court and imposed a financial responsibility on the proposed mother to maintain the child although she could not be forced to assume her maternal role. One important finding of the trial court with which the appeals court agreed is that "... administrative procedure exists to facilitate assisted conception birth registrations ... and courts routinely enter orders that authorise the issuance of birth certificates for children born as a result of alternate reproductive technologies would clearly militate against a finding that surrogacy contracts violate public policy".

I am now more intrigued to see how the Jamaican courts would handle a similar claim.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.