In re the Paternity and Custody of Baby Boy A

PGM (plaintiff), a gay man residing in New York, wanted to have a biological child. PGM contacted his sister to see whether she would be interested in serving as a gestational surrogate. PGM’s sister declined the offer, but she told her daughter, JMA (defendant), about PGM’s search for a gestational surrogate. JMA eventually agreed to act as a surrogate for PGM, and she became pregnant through an in vitro fertilization procedure using PGM’s sperm and an egg from an anonymous donor. Before the pregnancy, the parties signed a gestational-surrogacy agreement (GSA), which was drafted by PGM. Under the agreement, JMA would carry PGM’s child, give birth, and disclaim any right to the child. PGM agreed to pay for all of JMA’s expenses related to the surrogacy. As part of an oral modification, PGM agreed to pay an additional $20,000. While JMA was pregnant, the parties had a falling out. JMA demanded an additional payment of $120,000, threatening to abort the child if her demands were not met. PGM drafted a new agreement, obligating him to pay for additional expenses, but JMA did not sign it. JMA gave birth in Minnesota without notifying PGM. Upon learning of the birth, PGM filed a paternity action. An attorney was appointed for JMA and the child. Hennepin County Court Services recommended that PGM be awarded temporary custody and found that JMA was motivated by money. The district court awarded custody to PGM and denied JMA all parental rights, concluding that the GSA was enforceable under Illinois law, which governed because of a choice-of-law provision in the GSA. JMA appealed, contending that the GSA violated Minnesota public policy and should not be enforceable. JMA also argued that she was coerced into signing the GSA, and that the GSA did not reflect the intent of the parties.