The Iowa Supreme Court Friday affirmed a district-court decision that a Cedar Rapids couple are entitled to keep an 18-month-old child born to a surrogate mother from Muscatine. The case pitted two couples who both struggled to have children against each other.
“We hold this gestational surrogacy contract is legally enforceable in favor of the intended, biological father against a surrogate mother and her husband who are not the child’s genetic parents,” Justice Thomas Waterman wrote in the 38-page unanimous ruling released Friday.
The case involves Paul and Chantele Montover, who dated in high school but broke up and married other people. After divorces, they reconnected and married each other in 2013.
The Montovers both have children from their previous marriages but wanted a child together. Chantele Montover no longer was able to conceive, so in 2015 they placed an advertisement seeking a woman willing to act as a surrogate mother.
They never anticipated their desire for a child would lead to a multi-year court battle, Chantele Montover said Friday in a phone conversation with The Gazette. The child at the center of the controversy, Kaitlyn — once known only as Baby H — fussed in the background as Montover described her relief at Friday’s ruling.
“It’s been a long roller coaster with lots of ups and downs and craziness,” she said. “We hope this is it. No more appeals.”
The other couple in the lawsuit, identified only as T.B. and D.B., live in Muscatine and were married in 2009.
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T.B. has four children from a previous marriage, but like the Montovers, T.B. and D.B. wanted to have children together, the ruling states. One of the woman’s previous pregnancies left her unable to conceive again without in vitro fertilization. The couple could not afford IVF at the time, which led them to the Cedar Rapids’s couple’s advertisement, the ruling states.
The couples signed a gestational-carrier contract Jan. 5, 2016, stating the Montovers would pay the medical costs connected with T.B. serving as a surrogate for the Cedar Rapids couple.
The contract also provided up to $13,000 for the Muscatine couple to get a round of IVF themselves after the successful delivery of the Montovers’s child through surrogacy.
“T.B. and D.B. ‘agree(d) to surrender custody of the child to the intended parents immediately upon birth’ and ‘agree(d) that the intended parents are the parents to be identified on the birth certificate for this child,’” the ruling says.
The IVF was successful and T.B. found out in April 2016 she was pregnant with twins.
But the relationship between the couples soured. T.B. and D.B. asked for more money and the mothers disagreed about sharing on social media about the pregnancy and who should be in on medical conversations about the babies.
The couples started communicating mostly through lawyers, but on Aug. 19, 2016, “P.M. sent Facebook messages to D.B.’s sister, using racial slurs profanity to insult D.B.,” the ruling states.
The Muscatine couple contended Chantele Montover later called T.B. the “N word,” which contributed to T.B.’s decision Aug. 24 that she would not turn over the babies to the Cedar Rapids couple, Waterman wrote.
The twins were born Aug. 31, 2016, 13 weeks prematurely, and placed in neonatal intensive care. One child died eight days after birth.
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The Muscatine couple did not tell the Montovers the children had been born and arranged for the baby’s cremation, the ruling states.
On Oct. 24, the Montovers still were unaware of the birth and survival of one twin, but filed a court petition trying to enforce the surrogacy agreement. The 6th Judicial District Court issued an injunction Oct. 31, 2016, ordering T.B. and D.B. to surrender custody of Baby H to the Montovers.
The Montovers have been in custody of the girl since then, but T.B. and D.B. decided to fight the decision in court.
Genetic testing later proved the baby was Paul Montover’s biological child and ruled out parentage by T.B. or D.B., the ruling states.
The Supreme Court heard oral arguments Dec. 13, in which the science of IVF and legal ramifications of surrogacy were debated. There also were questions about whether this case amounted to buying and selling humans, which is illegal.
The high court ultimately came down on the side of the Montovers.
“The intended parents would not have entrusted their embryos to the surrogate mother, and this child would not have been born, without their reliance on the surrogate’s contractual commitment,” Waterman wrote.
Rigdon, the Montovers attorney, said the ruling clarifies Iowa law.
“Before this ruling, there was nothing in the law specifically saying these gestational surrogacy agreements are enforceable in Iowa, but also nothing saying they are invalid,” he said. “This ruling confirms what the existing law implied.”
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