In re Baby
447 S.W.3d 807 (2014)
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Rule of Law:
Traditional surrogacy contracts are not per se against public policy, but contractual provisions that attempt to terminate a surrogate's parental rights prior to the child's birth are unenforceable. The termination of a traditional surrogate's parental rights must comply with established statutory procedures, which can only occur post-birth.
Facts:
- L.G. (Intended Father) and A.T. (Intended Mother), citizens of Italy, were unable to have a child together and engaged a surrogacy agency.
- In July 2010, they entered into a traditional surrogacy contract with J.J.E. (Surrogate), a Tennessee resident, whereby J.J.E. would be artificially inseminated with L.G.'s sperm.
- The contract stipulated that upon birth, J.J.E. would relinquish the child to the Intended Parents and that she did not consider herself the child's mother despite providing the egg.
- The Intended Parents agreed to pay the Surrogate for medical and legal fees, lost wages, and pain and suffering, totaling over $70,000.
- The Surrogate became pregnant in April 2011 and gave birth to a girl on January 7, 2012.
- Following medical advice, the Surrogate breastfed the child for several days after the birth, with the Intended Father assisting in the child's care.
- Less than a week after the birth, the Surrogate decided she wanted to keep the child and challenged the validity of the surrogacy contract.
Procedural Posture:
- On November 7, 2011, prior to the child's birth, the Intended Parents and the Surrogate jointly filed a petition in the Juvenile Court for Davidson County to ratify the surrogacy agreement and terminate the Surrogate's parental rights.
- On December 21, 2011, a juvenile court magistrate entered a Consent Order, approved by all parties, that terminated the Surrogate's parental rights effective upon the child's birth.
- Less than a week after the January 7, 2012 birth, the Surrogate filed motions in the juvenile court to vacate the Consent Order and award her custody.
- The magistrate denied the Surrogate's motions, and the juvenile court judge affirmed the magistrate's rulings on appeal.
- The Surrogate (appellant) appealed to the Tennessee Court of Appeals, which affirmed the judgment of the juvenile court.
- The Tennessee Supreme Court granted the Surrogate's application for permission to appeal.
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Issue:
Does a traditional surrogacy contract that terminates the biological mother's parental rights through judicial ratification prior to the child's birth violate Tennessee public policy, making that termination provision unenforceable?
Opinions:
Majority - Wade, C.J.
Yes. A traditional surrogacy contract that purports to terminate the biological mother's parental rights prior to the child's birth is unenforceable as it violates the public policy embodied in Tennessee's statutes governing parental rights. While traditional surrogacy contracts are not categorically prohibited, they cannot circumvent the state's legal framework for the termination of parental rights. A traditional surrogate, as the biological mother, is a legal parent whose rights can only be terminated through established statutory procedures such as surrender or consent to adoption, both of which are legally impermissible before a child's birth. Therefore, the pre-birth judicial order terminating the Surrogate's parental rights was invalid. The unenforceable termination provision is severable from the rest of the contract, but because the Surrogate's rights were never validly terminated, she remains a legal parent, and the case must be remanded to determine her rights to visitation and responsibilities for child support.
Concurring - Koch, Jr., J.
Yes. Although agreeing with the majority's result, this opinion argues the court should not have issued a broad declaration that traditional surrogacy contracts are generally consistent with public policy. Surrogacy involves profound and complex public policy considerations regarding the use of human bodies, the creation of children, and family structures that are best addressed by the General Assembly, not the courts on a case-by-case basis. The court should have taken a narrower approach, finding only that the termination provisions in this specific contract were unenforceable because they conflict with existing statutes on parental rights, while leaving the broader policy questions to the legislature.
Analysis:
This decision establishes a critical precedent for assisted reproduction law in Tennessee by affirming the validity of traditional surrogacy contracts while subjecting them to the strictures of existing family law. It prevents parties from using private contracts to bypass mandatory statutory procedures for terminating parental rights, thereby safeguarding the legal status of the birth mother. The ruling clarifies that a traditional surrogate's rights cannot be extinguished pre-birth, forcing future surrogacy arrangements to incorporate a formal, post-birth legal process like adoption or surrender. This ensures judicial oversight at a critical juncture and reinforces the state's paramount interest in parentage and child welfare determinations.
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