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The surrogacy plan landed everyone in court.
By Isaac Serna-Diez
Last updated on Nov 17, 2023
In 2017, a Massachusetts woman and her fiancé discovered that neither of them could conceive a child.
The couple turned to Facebook to find someone who would do it for them.
“[W]ho wants to pop out a baby for my [fiancee] and I?!” she wrote, according to court documents.
“Hey, if you and [fiancé] were serious about a baby … then I would do it,” replied her childhood friend.
Originally, the childhood friend offered to conceive a baby with her boyfriend and then hand custody over to the Massachusetts woman so she could raise it as her own.
“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.”
She empathized with the Massachusetts couple, recognizing that a lot of the common routes to same-sex parenthood were much too expensive for a lot of people to afford, and offered to do it for free, claiming that her insurance would cover any medical costs.
“I know you guys would make amazing parents,” the biological mother reportedly wrote in Facebook messages.
They agreed that the intended mother and her fiancé would be present in the delivery room and that the couple would tell the child about their biological mother when they were older. The biological mother said she didn’t care to have a relationship with the child, as she had already had two kids of her own and was simply helping them out. Worried about the complications that could arise after the child’s birth, the intended mother sought a consultation with a lawyer, which the biological mother brushed off, reassuring the intended mother that things wouldn’t get complicated.
“[I don’t care] what the lawyer says,” she wrote. “ … I’m having a baby for this couple, end of story.”
The biological mother told the intended mother that they would try to conceive a child after St. Patrick’s Day. Four weeks after the original Facebook message, she sent the intended mother a picture of a positive pregnancy test. Court records show that the mothers kept in touch over Facebook Messenger, but it’s unclear if they ever met in person before the child’s birth on December 13th, 2017.
As they were leaving the hospital after the baby's birth, the biological mother handed over the child to the intended mother.
The hand-off prompted the hospital to file a child neglect report with the Department of Children and Families. After investigating both homes, they “concluded that [they] had no concerns with either household.”
Massachusetts law requires that intended parents have a child in their care for six months before they can apply for adoption, and as such, they filed a petition with the biological mother’s consent for guardianship. After about a month, the intended mother broke up with her fiancé and began dealing with depression and anxiety, but the biological mother saw the guardianship process through, keeping the intended mother as the guardian.
A clerical error in the hospital’s records assigned Keanu to the biological mother’s health insurance policy, kicking her eldest child off the insurance and sparking a change of heart from the biological mother.
The biological mother demanded the intended mother return the baby to her.
“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, even though she had not reached the six months of guardianship.
At around 4.5 months of age for Keanu, the biological mother petitioned to terminate the guardianship, but legal proceedings lagged, and when the baby was 8 months old, the intended mother applied for adoption of the child.
As time went on with Keanu in the intended mother’s care, the biological parents became agitated — disparaging the intended mother all over Facebook, calling her selfish, and even throwing a brick through her window that had “[h]e is mine” written on it.
In May 2019, Massachusetts Probate and Family Court combined the intended mother’s application for adoption and the biological parents’ individual cases for custody since they had separated some time over the years. According to the Washington Post, the appeals judges inquired about any legal precedent for the case, but no relevant laws in Massachusetts were seen, causing the court to improvise, and ultimately deciding that they would evaluate the biological parents’ fitness to care for the child.
During arguments in the appeals court in February, 2021, 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 continued. “The mother exposed the child to potential harm due to her Facebook postings.”
She also cited that the intended mother was the only parent Keanu had ever known and that they’d bonded over that time.
The appeals court judge agreed, and on July 22nd ultimately decided that the biological parents were unfit to parent the child.
The court moved the intended mother’s adoption application forward and granting her full custody of the child that had been hers for the last 3+ years.
“I’m troubled by the fact that the parties have placed the child in this jeopardy,” one judge said of the whole ordeal, “but both sets of potential parents here are far from ideal.”
This case, dubbed the “Guardianship of Keanu,” has prompted an update in the laws surrounding parenthood and guardianship, something that Massachusetts has had to improvise on until now.
"This case highlights the need for clarity and predictability with respect to these areas of the law, so that the risks of instability and the costs attendant on surrogacy may be reduced in order to protect children born through surrogacy, as well as the intended and biological parents (and, where relevant, the gestational carrier)," the judge wrote in the case decision.
Isaac Serna-Diez is a writer who focuses on entertainment and news, social justice and politics.