There’s a new opinion from Texas that serves as a bit of a cautionary tale. Marvin McMurray and his partner wanted to have children. A friend of Cindy Close agreed that she would become pregnant via IVF using embryos that were created from McMurray’s sperm and an egg from an unknown provider. Close gave birth to twins–twins she was not genetically related to.
I think what I’ve said so far is what everyone agrees about. But if that looks like an odd telling of the story, it’s because at the core of the story is a fundamental disagreement and so I haven’t recited it. Instead I’ll give you two versions–keeping in mind that I have NO IDEA what’s true here.
McMurray version: Close was a friend helping out McMurray and his partner by serving as a surrogate. She wasn’t going to be a parent to the children. (It says she would play “no role” but I assume this might mean “no special role” since if she’s a good friend she’d like be around some.).
Close version: McMurray was aware of Close’s desire to have children and they agreed to coparent. (This of course makes me wonder about why the third party egg, but there could be reasons for that.)
There’s one other thing that the parties agree on: They didn’t write their agreement down. (I think they actually also agree that there was an agreement as to what they were doing–but they clearly don’t agree about what the agreement was).
There’s layers of problem here–some specific to TX and to surrogacy and some general. So let’s just start with a general one: If you’re going to make an agreement about something really important–like who’s going to be a parent–WRITE IT DOWN. This at least would minimize disputes about what you actually agreed to. It’s true that writings can be (and surprisingly often they are) ambiguous. Then you fight about what the writing meant. But it seems to me that if the parties here had taken the trouble to write down what they agreed to we wouldn’t be where we are–with two fundamentally different versions of the events. (This actually doesn’t take a lawyer–people can write things down without legal training.)
But here’s where you do need a lawyer: Is a written agreement like this effective? The only way to answer that question generally, I think, is to say “maybe” or “it depends”. Perhaps most importantly it depends on what state you are in and what the law of that state provides.
As it happens, in Texas a written agreement along the lines of the McMurray version would be effective IF (and this is a huge IF) the intended parents are a married couple. And doubtless this means a couple TX recognizes as married. Which means not a same-sex couple. And what all that means is that even if there had been a proper written agreement consistent with McMurray’s version of events it wouldn’t have gotten McMurray what he wanted–at least according to this Court’s opinion. (And here’s another place to invoke “you need to talk to a lawyer”– is the Court’s opinion correct as a matter of TX law? Does the law in TX vary circuit to circuit? I don’t know–but I hope a TX lawyer would.).
Look at where McMurray and Close (and the children) end up. McMurray is the legal father of the children. Close is the legal mother. Assuming fitness all around, they’re going to have to raise these kids together–and under something less than idyllic circumstances. No one has gotten what they wanted.
Again, I’ll stress that it isn’t clear to me that McMurray could have gotten what he wanted under TX law. That may be the case. But a lawyer could have told him that and perhaps given him some alternatives. (Work out of state comes to mind).
It’s hard for me to imagine a time when people using surrogacy won’t need to talk to a lawyer. I don’t mean that it will never work without a lawyer. Surely it does sometimes. But the law here is pretty complicated and variable and what people think it is (like I imagine McMurray thought that the agreement would be effective) often isn’t right.
Now there’s lots more to say about this opinion–because McMurray makes some really interesting arguments trying to save his position. But that will be for another day. For the moment I want to keep the message really clear: Talk to a lawyer!