The Washington PostDemocracy Dies in Darkness

A woman agreed to have a baby for a Facebook friend through Messenger. Now, they’re locked in a custody war.

A Massachusetts custody battle centers on an agreement made on Facebook Messenger. (Jenny Kane/AP)
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When a Massachusetts woman and her partner learned neither of them could carry a child, the women turned to their Facebook friends for help.

“[W]ho wants to pop out a baby for my [fiancee] and I?!” the Massachusetts woman posted in early 2017, according to court documents.

It wasn’t long before she received a private message.

“Hey, if you and [fiancee] were serious about a baby … then I would do it,” wrote a woman who said she was childhood friends with the fiancee.

She offered to conceive a baby with her boyfriend and give the women custody so they could raise the child as their own. The women would not have to pay her or cover medical expenses, she said.

“I get some people say they couldn’t do it or it would be heartless to just give up a baby,” she continued, “but it’s not because it would be helping out.”

Without meeting in person or involving lawyers, the women — who are not named in court documents — agreed to what they viewed as an informal surrogacy. But the relationship between the parties soured after the child’s birth in December 2017, when the biological parents decided they wanted the baby back.

What followed is a bitter custody battle that devolved into vitriol and hostility. Legal proceedings are going on three years. The most recent development came on July 22, when a state appeals court ruled in favor of the Massachusetts woman after a trial judge determined the biological parents were unfit to care for the child.

The case, identified in court records as the pseudonymous “Guardianship of Keanu,” has baffled appeals court judges, who have admonished both parties for their unconventional and lackadaisical arrangement to conceive a child.

“It’s tragic. Terrible,” one of the judges said during oral arguments in February. “I don’t have words for the case. But, it has to be resolved for the child’s good in a way that is appropriate.”

While legal experts say “Guardianship of Keanu” is far from a textbook surrogacy — being that the child was conceived through intercourse rather than assisted reproduction — the case has highlighted the state’s glaring absence of surrogacy laws, an oversight experts say puts Massachusetts children at risk.

For two decades, judges in the state have called for legislation that would define surrogacy and outline how to determine in a dispute which adults are legally considered a child’s parents, according to Polly Crozier, a senior staff attorney at the nonprofit GLBTQ Legal Advocates and Defenders who has been involved in drafting and advocating for such legislation in Massachusetts.

“I don’t think this situation would have unfolded this way if there had been clarity,” Crozier told The Washington Post.

Twenty other states also lack laws governing surrogacy, according to Courtney G. Joslin, a law professor at the University of California at Davis. But legal advocates are trying to change that and ensure that new legislation is gender-neutral, given the increase in same-sex couples using surrogacy to build a family.

“The pace of states weighing in has really increased in the last decade,” Joslin said. “I expect that we’ll see even more states weighing in on this in the coming five to 10 years.”

But for the boy born in 2017, the Massachusetts courts were left to decide, with little guidance, who should raise the child: The mother who birthed him? Or the one who raised him?

‘Give him back’

Before the relationship turned venomous between the biological parents and the Massachusetts woman — known as the “intended mother” in court documents — the two parties appeared friendly in Facebook messages included in records of the custody dispute.

The biological mother empathized with the couple’s situation, recognizing that common routes to same-sex parenthood — adoption, fertility treatments, sperm donor and gestational surrogacy — can be expensive. But she offered to carry the baby for free and said her insurance would cover any medical expenses.

“I know you guys would make amazing parents,” the biological mother wrote.

They agreed the intended mother and her fiancee would be present during the delivery and that they would tell the child about his biological mother when he got older. The biological mother also noted she did not feel strongly about having a relationship with the child.

“Honestly I’m having a baby for you both so that would be 100 [percent] up to you both,” she said in the Facebook messages.

“I have a boy and a girl so I’m Good,” she added.

The intended mother had a consultation with a lawyer in the days that followed, but ultimately did not hire an attorney. After that consultation, the biological mother sent the intended mother a message brushing off any concerns that the arrangement could get complicated.

“[I don’t care] what the lawyer says,” the biological mother wrote. “ … I’m having a baby for this couple end of story.”

Days later, despite the two women having not met in person yet, they agreed it was time for the biological parents to try for a baby.

“So after St. Patty’s weekend we will try lol,” the biological mother said.

About four weeks after the initial Facebook message, she sent the intended mother a picture of a positive pregnancy test.

“Omg I’m gonna die of excitement,” the intended mother responded, followed by a pair of crying laughter emoji faces.

The women kept in contact over Facebook Messenger throughout the pregnancy, court records show. It is unclear if they ever spent time together in person before the biological mother gave birth on Dec. 13, 2017.

When leaving the hospital, the biological parents immediately gave the newborn baby boy over to the intended mother, according to court documents. After witnessing the handover, the hospital filed a child-neglect report with the Department of Children and Families, which triggered an investigation. After home visits with both families, the department “concluded that it had no concerns with either household,” court documents said.

On Dec. 14, the intended mother and her fiancee filed a petition to become the child’s legal guardians, and the biological parents signed documents providing their consent. Guardianship was the only route the couple could take, since Massachusetts law requires that intended parents have a child in their care for at least six months before petitioning for adoption.

But the intended mother’s situation changed during her first month caring for the child. She and her fiancee broke up, and she began dealing with depression and anxiety, according to court documents. Knowing those facts, the biological parents still went before a judge and granted the intended mother guardianship of the baby.

In the months that followed, the biological parents made no effort to visit the child and did not inquire about his well-being, Heather-Jill Williams, the intended mother’s lawyer, said in oral arguments.

A few months after the birth, the biological mother noticed the hospital had assigned the baby to her health insurance policy, which resulted in her oldest child being kicked off her plan. The change was a clerical error, according to the court documents.

But the mistake triggered a sudden flip in the biological mother’s feelings toward the intended mother.

“This greatly upset the biological mother, and she sent a Facebook message to the intended mother telling her to ‘adopt’ the child immediately or ‘give him back,’ ” court documents state. But the intended mother could not adopt the baby because she had not yet had the infant for the required six months.

When the child was about 4½ months old, the biological mother filed a petition to terminate the guardianship. The biological father did the same one month later — both wanted custody of the baby. The biological parents alleged the intended mother was unfit to care for the child, according to court documents. They accused her of making questionable parenting choices, like taking the baby to a nail salon when he was 2 months old and leaving him with her housemate so she could go to a concert out of state.

Months passed as the biological parents’ petition to end the guardianship remained pending, during which time the boy remained with the intended mother. In July 2018, when the child turned 8 months old, the intended mother filed for adoption, according to court documents.

But as court proceedings lagged, the biological parents grew increasingly agitated. The biological mother publicly disparaged the intended mother on Facebook, calling her “selfish,” court records state. She also claimed she had a stronger bond with the child because she carried him, according to the documents.

“He belongs with his real family instead of in a home where he’s just used to play house,” she wrote on Facebook.

In August 2018, someone threw a brick through the intended mother’s window with a note that said “[H]e is mine,” referring to the baby. The trial judge “drew the reasonable inference that the biological father threw the brick,” the appeals court said in the decision.

Reached by The Post, attorneys for both biological parents declined to comment.

It’s unclear whether the two remain coupled. According to court records, they got married in 2019 despite having a turbulent relationship.

“Even after their marriage, they continued to live separately for several months, and during the trial, the biological parents had separate counsel, sat separately, and made little to no eye contact with each other,” the appeals court wrote in its decision.

‘No law to apply’

In May 2019, the Massachusetts Probate and Family Court combined the cases, reviewing both the intended mother’s adoption petition and the biological parents’ individual requests for restored guardianship. Both biological parents and the child were granted lawyers through the court. (Children have the right to a court-appointed attorney in cases involving state action to remove a child from a biological parent.)

The judge ruled in favor of the intended mother, noting that she is the only mother the now-3-year-old boy has ever known and that the biological parents were unfit to care for the child. The judge found that before the legal proceedings, the biological parents made no effort to visit him and never inquired about his health or well-being.

The biological mother appealed the decision to the Massachusetts Supreme Judicial Court. The court’s decision to hear the case is pending.

During oral arguments in the appeals court in February, attorney Jacqueline Y. Parker, who represented the child in the appeal, said the biological parents “physically and emotionally [abandoned] the child” and showed a “neglectful nature by giving the child away to someone they only knew on Facebook.”

“The father placed the child at physical risk by throwing a brick through the guardian’s window,” Parker alleged. “The mother exposed the child to potential harm due to her Facebook postings.”

The appeals judges inquired about any legal precedent for the case. But with no relevant laws in Massachusetts surrounding surrogacy and parentage — the legal relationship between a parent and child — the court had to improvise.

“This case is truly amazing,” Janet Halley, a Harvard law professor, told The Post. “The court had no law to apply.”

Although “Guardianship of Keanu” is a unique case, having legal statutes would have helped the judges determine who had the rights to the child, Parker said, and avoided placing the child’s future in limbo as the custody dispute played out in court.

During that time, “the child is bonding with his or her caretaker,” Parker told The Post. “Also, without legislation there is no mechanism for screening intended parents for fitness.”

The judges ultimately decided the best approach was to evaluate if the biological parents were fit to care for the child, making it more akin to a guardianship dispute and a termination of parental rights.

Guardianship, which is often used when a person is designated by the parents to take care of their child in the event of death or incapacity, is not an ideal match for this case, according to Parker. If biological parents want their child back, it’s likely they’ll succeed, she said, “unless the parent is currently unfit by clear and convincing evidence with the burden of proof on the party opposing the biological parent.”

Parker argued that in the case of Keanu, taking the boy away from the intended mother could be detrimental to his mental health and cause other behavioral issues.

“I would say that it’s in the child’s best interest … to permanently settle [him] in the only family, only home [he’s] ever known,” Halley, the Harvard law professor, said.

The appeals court agreed, and on July 22, ruled the biological parents unfit to care for the boy, though one judge noted the whole situation was unfortunate.

“I’m troubled by the fact that the parties have placed the child in this jeopardy,” he said in oral arguments. “But both sets of potential parents here are far from ideal.”

As the court battle trudges forward, Massachusetts is closer than ever to passing surrogacy and updated parentage laws, according to Kate Weldon LeBlanc, the executive director of Resolve New England, which partnered with GLAD to get the legislation passed. She expects the legislature to vote on the bill before the end of the legislative session next July.

“The coalition hopes that the fact that Massachusetts is the last state in New England to update their parentage laws will create urgency this session,” LeBlanc told The Post.

For now, though, the courts have had to figure it out on their own.

“Until such legislation is enacted, this case also is a cautionary tale about the risks of an informal surrogacy,” the appeals judges wrote in the July decision.