RICHARD I. HODAS & another [Note 1] vs. KIMBERLY MORIN & others. [Note 2]

MARSHALL, C.J. Does a Probate and Family Court judge have authority pursuant to G. L. c. 215, s. 6, to issue prebirth judgments of parentage and to order the issuance of a prebirth rec

Page 545

ord of birth, see Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285 (2001), where neither the genetic parents nor the gestational carrier with whom they contracted to bear a child reside in Massachusetts, but where the contract specifies that the birth occur at a Massachusetts hospital? A judge in the Probate and Family Court answered that question in the negative, and dismissed the genetic parents' (plaintiffs) uncontested equity action for a declaration of paternity and maternity and for a prebirth order. She then reported her decision to the Appeals Court. See Mass. R. Civ. R 64 (a), as amended, 423 Mass. 1403 (1996). On June 22, 2004, a single justice of the Appeals Court enjoined the defendant Berkshire Health Systems, Inc., corporate owner of Berkshire Medical Center in Pittsfield (hospital), from issuing any birth certificate for a child born of the gestational carrier, or filing the same with the Commissioner of Public Health. See G. L. c. 46, s.s. 1, 3, 3A. On June 25, 2004, we transferred the matter here on our own motion. We conclude that, in the circumstances here, the plaintiffs are entitled to the relief they seek: judgments of paternity and maternity and a prebirth order establishing their legal parentage. [Note 3]

1. Facts. The plaintiffs, who are married, reside in Connecticut. The gestational carrier and her husband, both nominal defendants, reside in New York. The hospital, the other nominal defendant, is a licensed Massachusetts hospital whose statutory duties include, among others, reporting information concerning births at the hospital to the city or town clerk where the birth occurred.

In April, 2003, the plaintiffs, the gestational carrier, and the gestational carrier's husband entered into a fifteen-page "Contract Between a Genetic Father, a Genetic Mother, a Gestational Carrier and Her Husband" (gestational carrier

Page 546

agreement). The parties represented that each had been advised by counsel of their choice prior to entering into the agreement. Among other things, the gestational carrier agreement provided that any child resulting from the agreement would be delivered at the hospital, if at all possible [Note 4] and that in any event the gestational carrier would "take all reasonable steps to give birth to any child carried pursuant to this Agreement at a Hospital located in the State of Massachusetts." It is undisputed that the parties chose Massachusetts as the site of the birth in part to facilitate obtaining a prebirth order. [Note 5]

The parties' preference for Massachusetts was further expressed in the following choice of law provision:

"The Gestational Carrier and [her] husband agree that they are entering into this Agreement with the intention that in accordance with the laws of the State of Massachusetts, they will take whatever steps are necessary to have the Genetic Father and the Genetic Mother named as the natural, legal and genetic parents, to have the Genetic Father and the Genetic Mother named as the father and mother, respectively, of [the] child on the child's birth certificate, and to permit the Genetic Father and the Genetic Mother to obtain physical custody of any child born as the result of this Agreement. . . . The parties

Page 547

further agree that this Agreement shall be governed by Massachusetts law."

Approximately six months after the parties entered into the gestational carrier agreement, the gestational carrier was successfully implanted with an embryo produced from the male plaintiff's sperm and the female plaintiff's egg. The implantation took place in Connecticut. The gestational carrier received at least some prenatal care at the hospital. At oral argument on June 30, 2004, counsel informed the court that an induced delivery was planned at the hospital the following week.

2. Jurisdiction. In her report, the Probate Court judge stated that "[t]he primary question presented is whether, under the circumstances of this case, this Court has jurisdiction to grant the relief requested?" The Probate Court's jurisdiction over this case, however, is clear. First, as a general matter, the Probate Court has subject matter jurisdiction in questions of law and equity concerning parentage. See, e.g., G. L. c. 209C; G. L. c. 215, s. 6. More specifically, as we held in Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285 (2001), a Probate Court judge has authority pursuant to G. L. c. 215, s. 6, to consider a request for a prebirth order where, as here, "(a) the plaintiffs are the sole genetic sources of the [child]; (b) the gestational carrier agrees with the orders sought; (c) no one, including the hospital, has contested the complaint or petition; and (d) by filing the complaint and stipulation for judgment the plaintiffs agree that they have waived any contradictory provisions in the [gestational carrier] contract (assuming those provisions could be enforced in the first place)." Id. at 291-292. That the gestational carrier, her husband, and the plaintiffs all reside outside of Massachusetts does not bar the Probate Court's subject matter jurisdiction under G. L. c. 215, s. 6, because the equity statute poses no residency requirement. [Note 6] Cf. G. L. c. 208, s. 5 (in proceeding for divorce, plaintiff must be domiciled in

Page 548

Massachusetts); G. L. c. 215, s. 3 (for probate of win, decedent must have been inhabitant or resident of respective county at time of death).

Second, personal jurisdiction is also proper. The Probate Court, of course, has personal jurisdiction over the hospital, a Massachusetts corporation. See G. L. c. 223A, s. 2. Indeed, it is doubtful that any other State could grant the plaintiffs the injunction they seek requiring the hospital to report certain information about the child's parentage to Massachusetts officials. The Probate Court's personal jurisdiction over the gestational carrier and her husband derives from their stipulation for entry of judgment in favor of the plaintiffs. Vangel v. Martin, 45 Mass. App. Ct. 76, 79 (1998) paraphrasing in parenthetical to Precision Etchings & Findings, Inc. v. LGP Gem, Ltd., 953 F.2d 21, 25-26 (1st Cir. 1992) ("the defense of lack of personal jurisdiction . . . may be waived by express submission, conduct, or failure to assert the defense"). See Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974). In short, the jurisdictional issues here are unproblematic.

3. Choice of law. The driving issue in this case, rather, concerns choice of law. The interested couples come from different States; the chosen hospital from yet a third. None of the individual parties resides in the Commonwealth, yet they have contracted that Massachusetts law govern the gestational carrier agreement and, by extension, the petition for judgments of parentage and for a prebirth order. We must consider whether to respect their choice . [Note 7]

The gestational carrier agreement implicates the policies of multiple States in important questions of individual safety, health, and general welfare. Complicating matters is the fact

Page 549

that the laws of Connecticut, New York, and Massachusetts, the three States that potentially could govern the agreement, are not in accord. In Connecticut, where the genetic parents reside, gestational carrier agreements are not expressly prohibited by, and perhaps may be contemplated by, the recently amended statute governing the issuance of birth certificates. See Conn. Gen. Stat. c. 93, s. 7-48a, 2004 Conn. Legis Serv. PA. 04-255 (West 2004) ("On and after January 1, 2002, each birth certificate shall contain the name of the birth mother, except by the order of a court of competent jurisdiction . . ."). The gestational carrier resides in New York, a State that has expressed a strong public policy against all gestational carrier agreements. See N.Y. Dom. Rel. Law s. 122 (McKinney 1999) ("Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable"). [Note 8] Massachusetts, as we have noted, recognizes gestational carrier agreements in some circumstances. See Culliton v. Beth Israel Deaconess Med. Ctr., supra; R.R. v. M.H., 426 Mass. 501 (1998).

In light of these differing State policies and the parties' declared intent to follow Massachusetts law, we look to our established "functional" choice of law principles and to the Restatement (Second) of Conflict of Laws, with which those principles generally are in accord. [Note 9] Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631-632 (1985). As a rule, "[w]here

Page 550

the parties have expressed a specific intent as to the governing law, Massachusetts courts will uphold the parties' choice as long as the result is not contrary to public policy." Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 260 (1977), citing Restatement (Second) of Conflict of Laws s. 187 (1971). [Note 10] See Morris v. Watsco, Inc., 385 Mass. 672, 674 (1982) ("Massachusetts law has recognized, within reason, the right of the parties to a transaction to select the law governing their relationship"). The Restatement similarly presumes that the law the parties have chosen applies, unless "(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state" and is the State whose law would apply under s. 188 of the Restatement "in the absence of an effective choice of law by the parties." Restatement (Second) of Conflict of Laws, supra at s. 187(2). See note 14, infra.

Under the two-tiered analysis of s. 187(2), we readily conclude that Massachusetts has a "substantial relationship" to the transaction. See s. 187(2)(a). That substantial relationship is anchored in the parties' negotiated agreement for the birth to occur at a Massachusetts hospital and for a Massachusetts birth certificate to issue, and bolstered by the gestational carrier's receipt of prenatal care at a Massachusetts hospital in anticipation of delivery at that hospital. See s. 187 comment f, supra at 566-567 (place of partial performance considered to be sufficient to establish a reasonable basis for the parties' choice of law).

Turning to the second prong of s. 187(2), it is a close question

Page 551

whether applying the parties' choice of law would be "contrary to a fundamental policy" of another State with a "materially greater interest." See s. 187(2)(b). Certainly the interests of New York and Connecticut are material and significant, for the contracting parties reside in these States. Nevertheless, the interests of New York and Connecticut may be at cross purposes here. New York, the home of the gestational carrier and her husband, expressly prohibits gestational carrier agreements in order to protect women against exploitation as gestational carriers and to protect the gestational carrier's potential parental rights. See N.Y. Dom. Rel. Law s. 122. [Note 11] New York has thus expressed a "fundamental policy" on a matter in which it has a great interest. Connecticut, the plaintiffs' home State, is silent on the question of gestational carrier agreements, but in any event does not expressly prohibit the plaintiffs from entering into such an arrangement. Massachusetts also has interests here, including interests in "establishing the rights and responsibilities of parents [of children born in Massachusetts] as soon as is practically possible" and "furnishing a measure of stability and protection to children born through such gestational surrogacy arrangements." [Note 12] Culliton v. Beth Israel Deaconess Med. Or., supra at 292.

However, even if we were to decide that New York had a "materially greater interest" than both Connecticut and Massachusetts, New York's policy would not operate to overrule the parties' choice of law unless New York would have been the applicable law in the absence of any articulated choice by the parties. The Restatement (Second) of Conflict of Laws s. 187(2)(b) directs us to a list of factors enumerated in s. 188 to determine what law would have applied if the contract itself

Page 552

were silent on the issue. [Note 13] See Bushkin Assocs., Inc. v. Raytheon Co., supra at 632. Again, consideration of the factors listed in s. 188 leads to inconclusive results. For example, the "place of contracting" and the "place of negotiation," see s. 188(2)(a)-(b), are both unknown, although presumably these activities took place in New York or Connecticut, or both. [Note 14] The "place of performance," see s. 188 (2) (c), arguably is the intended place of birth (Massachusetts), or the place of prenatal care (at least partly in Massachusetts), or the place where the pregnancy evolved (New York), or the place where the genetic carrier was inseminated (Connecticut), or any combination of these. The location of the "subject matter of the contract," see s. 188(2)(d), is equally difficult to determine, and the final consideration, the "domicil" of the parties, s. 188(2)(e) (New York or Connecticut) in this case is not helpful. Thus, whatever New York's interest in protecting the gestational carrier and her husband, it is doubtful that the principles of s. 188 would result in application of New York law to this particular contact.

"[W]here the significant contacts are so widely dispersed that determination of the state of the applicable law without regard to the parties' choice would present real difficulties," the Restatement instructs that the parties' choice of law will be

Page 553

honored. s. 187 comment g, supra at 568. This conclusion comports with our functional conflict of laws analysis, which requires consideration of factors such as "uniformity of result, maintenance of interstate order, and simplification of the judicial task" and "the justified expectations of the parties." Bushkin Assocs., Inc. v. Raytheon Co., supra at 635.

We conclude, then, that the judge should have applied the parties' choice of law, the law of Massachusetts, to resolve the plaintiffs' complaint. [Note 15] Although the judge in her decision prudently raised the issue of forum shopping in declining to consider the complaint, we are satisfied that, in the circumstances of this case, the parties' choice of law is one we should respect. We are also satisfied that our established conflict of laws analysis will work to prevent misuse of our courts and our laws. [Note 16]

4. Conclusion. For the foregoing reasons, on July 1, 2004, we ordered that the judgment of the Probate Court dismissing the plaintiffs' complaint be vacated, and the injunction pending appeal ordered by the single justice of the Appeals Court be dissolved. We remanded the case to the Probate and Family Court where a judgment was to enter declaring the plaintiffs to be the legal parents of the unborn child and ordering the hospital, Berkshire Health Systems, Inc., through its reporters, on the birth of the child, to place the plaintiffs' names on the record of birth created pursuant to G. L. c. 46, s.s. 1, 3, and 3A, listing the plaintiffs as the father and mother, respectively, of the child.