Another Look At Why You Ought Not To Try Surrogacy Without Lawyers

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!



7 responses to “Another Look At Why You Ought Not To Try Surrogacy Without Lawyers

  1. The link to the opinion doesn’t seem to work. Searching for “Cindy Close” or “Marvin McMurrey” (note spelling) returns some cases.

    This article also talks about the case:

    Ms Close was 47 when she was impregnated, which would explain the donor eggs.

    • Thanks for pointing out the link problem. I have tried to upload the opinion. If you follow the currently link and click on the “TX case” then you should (I hope) be able to open the opinion. There must be a better way. You can also search for it–April 10 from the 14th district court of appeals.

      And thanks, too, for the article.

  2. “Marvin McMurray and his partner wanted to have children.” Wanted to RAISE children together. Marvin wanted to have one and did, so contrary to what you said about people not getting what they wanted it appears he got to have the kid he wanted to have. He also gets to raise his kid with his partner, which means the partner gets what he wanted. Their friend got to bear a child which she obviously wanted to do or she would not have done it. She’s getting the bonus of getting to raise a child, which I don’t think she should be named as a parent just because she gave birth but that’s the law for the moment.

    See if the law was how I want it that lady would not be named parent at least she’d be out of his way. The law should name the woman whose maternally related as the mother but since we don’t know who she is I suppose that would free the kid up for adoption.
    But it should be illegal to hide the names of people who have offspring so they can avoid responsibility for parenthood, but that is not the case at the moment.

    Hey maybe we should not enforce contracts for custody and control of minors or contracts where people abandon parental title and responsibilities. That would be the best thing. Don’t enforce the terms of gamete donation agreements that have to do with parental obligations or parental title, don’t enforce surrogacy agreements where parental obligations or parental title is concerned. Let’s just have the bio parents held responsible and then if they want to give their child up for adoption, they do it in court like the rest of society and stop trying to short cut the process because what is short cut are really important steps that prevent trafficking and commercial trade in human beings and parental rights. Even the altruistic giving away of those things is objectifying.

    • Surely McMurray is not entirely happy with the outcome as he lost the litigation, thus my conclusion he didn’t get what he wanted. It may actually be that Close wanted to co-parent with McMurray, and in that sense she got what she wanted. But she surely didn’t want to have to be litigating against him the TX courts, right?

      If McMurray had gone to a lawyer at the outset and explained whatever it was he wanted, this is not the path he would have ended up on (assuming a competent lawyer.) That’s not about what the law is/is not/should be. That’s about the importance the importance of knowing what the law will do to your plans.

      • Julie forget the guys partner for a second – it would not even matter to me if they were married. This guy is the father of that child and the mother is nowhere to be found. Can a guy do a prebirth order so that whoever gives birth to his child would not be recorded as the mother of the child she gave birth to? Just X her out of it? I mean when she is being implanted with someone else’s egg isn’t there some way to block her from pretending that she’s the mom, like what if his wife or girlfriend were the mom? Then they could do a pre birth order for her to be named Mom but what if she is some anonymous woman like in this case? Are they just naming the woman that gives birth for lack of anyone else to name? It’s such a mess. I would not think the woman that gives birth would have much say in the matter if it is not her egg/offspring but I guess leaving all that until the last minute gave her bonding time ?

  3. Julie,

    I have no idea why anyone would go into anything like this no matter how strong their relationship was without a contract. Too many times relationships family or friends fall a part for any number of reasons. You’d be selfish to not have the parental arrangement legally outlined prior to attempting to conceive the child.

    • There may be two points to make in response.

      First, some people–maybe all of us at least some of the time?– just don’t think in terms of contracts or at least written contracts. They trust each other. That’s not generally a bad thing— and indeed, we have to live that way, really. The problem, though, isn’t simply that you might be wrong to trust. There are often misunderstandings, even where it’s good will all around. Writing can help iron those out early and prevent slippage.

      Second, contracts/agreements won’t always work. There was a contract in Baby M but the court wouldn’t enforce it. You actually do need to know the law–hence, a lawyer is a really good idea……

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