J.F. v. D.B.
116 Ohio St. 3d 363 (2007)
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Rule of Law:
A gestational-surrogacy contract is not contrary to the public policy of Ohio and is therefore generally enforceable, even if it includes provisions for the gestational surrogate to relinquish parental rights, because Ohio law has not articulated an explicit public policy against such agreements.
Facts:
- Eggs from a nonparty donor were artificially inseminated with semen from J.F.
- The fertilized eggs were implanted in D.B., who subsequently became pregnant.
- Prior to these events, J.F., D.B., D.B.’s husband, and the egg donor executed a gestational-surrogacy contract.
- The contract stipulated that D.B. would "not attempt to form a parent-child relationship with any child conceived pursuant to the contract" and would "institute proceedings" to "terminate [her] parental rights" upon the birth of the children.
- In return for her services, J.F. agreed to pay D.B. $20,000 and expenses.
- D.B. gave birth to triplets.
- The triplets live with their biological father, J.F.
- A custody dispute regarding the triplets followed their birth.
Procedural Posture:
- J.F. sued D.B. and her husband in an Ohio trial court for breach of contract, following a custody dispute.
- Both J.F. and D.B. moved for summary judgment in the trial court.
- The trial court granted summary judgment for D.B. and her husband, concluding that the contract provisions requiring D.B. to relinquish parental rights and allow J.F. to recoup child support violated Ohio's public policy and could not be enforced.
- J.F. appealed the trial court's decision to the Ohio Court of Appeals (J.F. was the appellant, D.B. and her husband were the appellees at this stage).
- The court of appeals reversed the trial court's judgment, concluding that nothing in Ohio law prohibits gestational-surrogacy contracts or their enforcement, and also found D.B. and her husband breached the contract, remanding for a determination of attorney fees and other expenses.
- D.B. and her husband (appellants) filed a discretionary appeal, which was accepted by the Ohio Supreme Court (J.F. was the appellee at this stage).
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Issue:
Is a contract entered into by parties for gestational surrogacy, where the gestational surrogate agrees not to assert parental rights, contrary to the public policy of Ohio?
Opinions:
Majority - Pfeifer, J.
No, a gestational-surrogacy contract, even one requiring the surrogate to relinquish parental rights, is not contrary to the public policy of Ohio because no articulated public policy against such contracts exists. The court found that neither the General Assembly nor any other governmental body in Ohio has ever enunciated a public policy concerning gestational surrogates. While acknowledging that liberty of contract is not absolute and is subservient to the public welfare, the court concluded that D.B.'s arguments, citing various statutes related to adoption and cases from other states, did not demonstrate that Ohio has a public policy against gestational-surrogacy contracts. The court explicitly stated that its ruling applies only to gestational surrogates (where the surrogate's own egg is not used) and draws no conclusions about traditional surrogates. The court affirmed the appeals court's finding on public policy but reversed and remanded on the breach of contract and damages issues, as those were not fully briefed at the appellate level.
Dissenting - Cupp, J.
Yes, the gestational-surrogacy contract is contrary to Ohio public policy and void because its essential nature violates established policies safeguarding children and parental rights. The dissenting opinion argued that the freedom of contract is not unlimited and that contracts violating established law or public policy are unenforceable. It contended that Ohio has well-established public policies safeguarding children, including judicial oversight over custody and parental rights, as manifested in statutes like R.C. 5103.17 (prohibiting inducements to parents to part with offspring) and R.C. 3107.055(C) (prohibiting payment for termination of parental rights in adoptions). The dissent viewed the contract's essence as creating a child for payment, requiring the surrogate and egg donor to forgo parental rights for money, which violates these policies. It also noted that the contract's indemnification clause for J.F.'s child support obligations violates the public policy that parents cannot contractually escape child support duties. The dissent warned that enforcing such unregulated contracts could turn Ohio into a "marketplace" for child production.
Analysis:
This case significantly clarified Ohio's stance on the enforceability of gestational-surrogacy contracts, establishing a presumption of validity in the absence of explicit legislative or judicial prohibition. It reinforces the principle of freedom of contract, requiring a clearly articulated public policy to invalidate agreements, particularly in novel areas of law like reproductive technology. The crucial distinction drawn between gestational and traditional surrogacy highlights the evolving legal treatment of different forms of surrogacy. This decision places the onus on the legislature to act if it wishes to regulate or prohibit such contracts, rather than relying on the courts to infer public policy against them.
