Landmark International Surrogacy Court Decisions

In this video, Page Provan Director and award-winning surrogacy lawyer Stephen Page explores international landmark court decisions for surrogacy.

Transcript

G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers, and I’m talking today about some landmark surrogacy decisions throughout the world. And it’s pretty hard to do a tick and flick on this and say, which ones do I want to pick? So these are ones that I find interesting, and I think are really influential, and these are really two decisions from the United States.

One decision concerning Costa Rica, which isn’t strictly about surrogacy, and two decisions from Mexico, and one decision is from Colombia. I’m not going to talk about European decisions, I can talk about European decisions on another occasion.

But I think these American decisions are really interesting about who is a parent, and the difficulty with the United States, if we just start there, is we’ve got 51 different jurisdictions about what is surrogacy and who is a parent through surrogacy. So there are different tests, some are based on legislation.

So there’s statutes passed by the legislature, for example, the Texas Family Code, and some of them are based on case law, and the two decisions I’m going to talk about come from California, and I think they’re really the most influential decisions that have happened.

The first case is a case called Johnson v Calvert, and it was decided by the Supreme Court of California way back in 1993. There were three parties. There was Mark and Crispina, an unusual name, but they were a couple, husband and wife, and they wanted to become parents.

So they created some embryos, and one of those embryos was implanted into a woman called Anna, who was a surrogate. So Anna, and Mark, and Crispina entered into a contract whereby Anna was paid $10,000 to have a child. Well, the child was conceived and born.

The embryo comprised Mark and Crispina genetic material, but they fell out, and Anna went to court saying, I’m the mother, and I should have the child and this agreement should be void because it’s actually in breach of these rules that say, don’t buy a baby through adoption.

This all ended up in the Supreme Court of California, and that Supreme Court first looked at the issue of, well, was this an adoption? They said, well, no, it’s not, adoption and surrogacy are two different beast. So they didn’t see that there was a breach of these anti-adoption…

The adoption rules to say, don’t buy a baby, and they said it was legitimate for a woman to have the choice of being paid to be a gestational carrier. And if there were to be some rules about that, there could be some research undertaken on behalf of the legislature, the Parliament in California.

But the court was dealing with a problem in front of it and the fundamental problem was, who was the mother of this child? Was it the woman who gave birth to the child, Anna, because there was law that said, yes, she was a parent? Or was it the woman who was the genetic mother, which was Crispina?

And how was the court to resolve this issue, where there was the statute the act of the California legislature that said each of these women was the mother and what the court said was, well, let’s look at why they did this. What was the point of putting the embryo into Anna? Was it to enable her to become the mother?

In other words, Mark and Crispina were the donors. Or was it to enable Mark and Crispina to be the parents? And of course, it was the latter, and they said this famous phrase, but for their acted on intent, namely Mark and Crispina’s, the child would not exist.

And so the court looked at intention. What was the intention of the parties and of course, it was for Mark and Crispina to be their parents, and therefore, Mark and Crispina were the natural parents of the child. That case has been really influential, and we see that influence right across many parts of the United States, but also down south in other countries in America.

Following that decision, in 1998, there was the decision of Buzzanca, and this involved a couple, John and Luanne. I’m not making these names up, by the way. This was the name of the couple and they entered into a surrogacy agreement with the surrogate, and they had an embryo not comprised of their genetic material implanted into their surrogate.

So I’m not clear whether it was a donor embryo or whether it was an embryo created from donor sperm and donor egg. I don’t think it matters, it wasn’t their genetic material. Well, everything worked.

She conceived and gave birth to a child but in the meantime, in the words of the court, John and Luanne split up, and John, of course, said, no doubt mindful he didn’t want to pay 18 years of child support, I’m not a parent.

So the California Court of Appeal had to look at who were the parents here, and they took that decision in Johnson v Calvert and said, well, it doesn’t matter so much about genetics. What’s important here is about intention and what was the intention here?

The intention was consistent with Johnson v Calvert for John and Luanne to be the parents and that was an extraordinary decision based on what happened at the trial, because at the trial, the trial judge had said the child didn’t have a parent, because the surrogate wasn’t a parent, she wasn’t genetically a parent, and Luanne wasn’t a parent because she wasn’t genetically a parent, and John wasn’t a parent because he wasn’t a genetically a parent.

Of course, the California Court of Appeal said, there’s a public policy that a child has parents, at least has to have a parent, and who was the parent? Well, of course, it was John and Luanne based on intention.

So what have we seen south of the border? The first case was a case called Murillo and Costa Rica, and this wasn’t a surrogacy case, but this was an IVF case, and the court in that case, the Inter-American Court of Human Rights, really took Costa Rica to task because right across Latin America, IVF was available, except in Costa Rica.

Because of the view held, a Catholic country, that IVF somehow was bad against Catholic churches’ doctrinal thinking. Therefore, IVF was just not available at all. So this idea of procreative intent, that concept that we’ve seen in Johnson v Calvert, and Buzzanca, was really seen as a fundamental human right that everyone should be able to, if they want, to be able to have the freedom to reproduce, and therefore should have the right to be able to engage IVF.

So as a result of that decision in Murillo, the Inter-American Court of Human Rights said, There is a right to engage in assisted reproductive treatment in Costa Rica, there should not be a ban of IVF in Costa Rica. IVf is now available in Costa Rica.

There have been two decisions in the Supreme Court of Mexico which have really furthered along the same thinking that we’ve seen in Johnson v Calvert, and Buzzanca. The first case in 2018, in involved a gay couple living in Yucatan who underwent surrogacy there, so a single surrogate.

The practise in Yucatan at the time was, well, the biological dad goes on the birth certificate as the father, and the surrogate goes on the birth certificate as the mother. And as I’ve said in my video about surrogacy in Mexico, that still happens with some lawyers in Mexico.

Really bad outcome because the other guy doesn’t get recognised, or the other parent, it might be, the intended mother, doesn’t get recognised. Well, these two blokes didn’t like it terribly much, and it ended up in the Supreme Court of Mexico, which held, consistent with the approach in Johnson v Calvert, and Buzzanca, that because of their procreative intent, because they intended to be the parents, they were the parents.

So both men should be on the birth certificate and not the surrogate. In 2021, the Supreme Court of Mexico revisited this issue of surrogacy in the context of Tabasco. Now, the State of Tabasco, as I said in my surrogacy in Mexico video, had a ban on foreigners undertaking surrogacy and a ban on gays and lesbians undertaking surrogacy and guess what?

The Supreme Court of Mexico didn’t like that ban at all. It said, Well, under our Constitution, there’s no discrimination based on sexuality. So if you’re a gay couple, you can undertake surrogacy in Tabasco. The law, to that extent, was invalid and secondly, if you’re foreigners, you have the same in human rights guaranteed under the Mexican Constitution as locals.

So the ban on foreigners in Tabasco was then ruled out of order as well. So that the couple who had come from Southern Europe, I can’t remember whether it was Spain or Italy, were therefore entitled to undertake surrogacy in Tabasco and recognised as the parents.

The Supreme Court of Columbia has also looked at this issue of procurative intent, and in a case some years ago, ruled in a dispute between the genetic father and the genetic mother, that intent determined who was a parent. That court also called for regulation of surrogacy, and has regularly said so since, which hasn’t yet occurred.

As the Supreme Court of Mexico called for regulation of surrogacy, again, it hasn’t happened. But that same idea of procreative intent that we’ve seen trickled down from Johnson v Calvert and been so influential in Mexico, for example, that’s also the approach taken in Colombia, and indeed in Argentina, and a video I’m going to be talking about is surrogacy in Australia versus Argentina.

That idea of procreative intent has now made its way into regulations in Buenos Aires but that’s for another video.

Thank you.