Peggy and Gary have been married for five years, and had been trying to have a child. They had undergone artificial insemination and in vitro fertilization, but each pregnancy had resulted in a miscarriage. Peggy and Gary decide that surrogacy was their best option and placed an advertisement in the local college newspaper. Josephine, a 21-year-old college student, answered the advertisement. At the time, she was dating a man named Jerry who she loved very much and hoped to marry, but Jerry had recently broken up with Josephine. Hoping to trick Jerry into marrying her, Josephine agreed to be the surrogate for Peggy and Gary. Using Peggy and Gary’s zygote, Josephine underwent in vitro fertilization and became pregnant. During the pregnancy Josephine underwent routine medical examinations, as required by the surrogacy contract. During one of the examinations, a genetic screening test was performed and it was discovered that the child had Down Syndrome. Peggy and Gary did not desire to have a child with Down Syndrome and in accordance with the surrogacy contract paid Josephine to undergo an abortion. In addition, Josephine contacted Jerry, telling him that she was carrying his child. Not wanting to be a husband or father at a young age, Jerry paid Josephine for an abortion as well. He then transferred to another school in a different state. As a college student who could use the cash, Josephine gladly took the money for the abortion. But because of religious reasons she did not have an abortion and carried the child to term. She never told Peggy, Gary, or Jerry that she delivered a child. Unfortunately, being a single mother and college student was too much for Josephine. At three months, she took the child, whom she called Greg, to the local hospital and surrendered him under the state’s Safe Haven law.
When Peggy and Gary learn that their biological child had actually been born, they petitioned the court to have their child returned to them and to award them custody. How should the court decide? Should the child remain in foster care or be given to Peggy and Gary? What if Josephine’s parents decide to petition for adoption? Do they have any rights?
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