April 17, 2007
Ohio Court to Hear Arguments In Surrogacy Agreement Case
The Supreme Court of Ohio hears oral argument today in a case that raises the issue whether "a gestational surrogacy contract, in which a woman accepts payment for gestating the fertilized egg of a third party donor and agrees to surrender all custody rights to the child's biological father after the child is born, [is] unenforceable in Ohio on the basis that such a contract violates the public policy underlying the state's adoption and child support laws?"
Here is synopsis of the case from the Court's website:
BACKGROUND: In this case, James Flynn of Kirtland, Ohio entered into a surrogacy contract with Danielle and Douglas Bimber of Corry, PA. In the contract, which was arranged through an agency so that the parties initially did not know one another's identities, Danielle agreed to have three eggs that had been harvested from a paid third-party donor, Jennifer Rice, and fertilized in vitro by Flynn's sperm, implanted in her uterus. In return for a fee of $20,000 plus expenses of the pregnancy and delivery, the Bimbers agreed that Danielle would carry to term any embryos that successfully implanted, and that upon her delivery of a child or children the Bimbers would acknowledge Flynn as the natural father, would not attempt to establish a parental relationship, and would immediately "surrender any custody rights to the children to the birth father."
The contract provided that if the Bimbers should be awarded custody of the child or children resulting from the implantation, Flynn was indemnified against any liability for child support or pregnancy expenses and would be entitled to immediate reimbursement of all payments he had made to or on behalf of the Bimbers under the contract, plus attorney fees. Another contract clause specified that any contract-related legal dispute between the parties would be resolved under the laws of Ohio.
All three embryos developed and Danielle delivered triplets in Pennsylvania in November 2003. On the following day, she executed documents granting custody of the children to Flynn and authorizing him to remove them from the hospital. The next day she rescinded those documents and shortly thereafter the Bimbers took the children to their home without notifying Flynn and initiated proceedings to obtain permanent custody. Flynn filed suit in Erie County, PA to recover the children and establish his right to sole custody. The Pennsylvania court determined that, under the laws of that state, Danielle was the mother of the triplets and that Flynn had established his parentage by means of the contract. The Bimbers were authorized to go forward with a Pennsylvania custody action, which was contested by Flynn. In January 2005, the Pennsylvania court awarded primary custody of the triplets to the Bimbers. Flynn received visitation rights with the children, and was ordered to pay the Bimbers $1,750 per month in child support.
Flynn subsequently filed suit in the Summit County ( Ohio ) Court of Common Pleas, seeking to enforce the provisions of the surrogacy contract requiring the Bimbers to repay all amounts they had received from him and to indemnify him against any current or future child support obligation. The trial court granted summary judgment in favor of the Bimbers, ruling that the surrogacy contract was void and unenforceable because it was contrary to Ohio's public policy against (1) private agreements in which parents surrender their parental rights, especially when such agreements involve payment of money to a parent; and (2) attempts by a natural parent to "contract away" the legal obligation to provide financial support for his or her offspring.
Flynn appealed, and the 9th District Court of Appeals reversed the trial court. The 9th District held that, under Ohio law, Flynn and the egg donor, Jennifer Rice, were the natural parents of the triplets and therefore the Bimbers' contractual agreement to surrender custody of children with whom they had no biological relationship was not in violation of public policy. The court of appeals ruled that the surrogacy contract was enforceable and that the Bimbers had breached their agreements not to establish a parental relationship and to promptly surrender custody of the children to Flynn. The case was remanded to the common pleas court with a directive to determine and award damages to Flynn for the breach of contract, including reasonable attorney fees.
The Bimbers now ask the Supreme Court to reinstate the trial court's summary judgment in their favor. They argue that the court of appeals exceeded its authority by not only reversing the trial court's judgment, but going on to find that a breach of contract had occurred when the trial court did not reach that issue because it held that the contract was unenforceable. They assert that Pennsylvania had jurisdiction to determine the legal parentage of the triplets because they were born in that state, and argue that Ohio courts are bound to honor the Erie County court's recognition of Danielle as the legal mother of the triplets and its order that Flynn pay child support.
Attorneys for Flynn urge the Court to affirm the 9th District's ruling that his contract with the Bimbers is legal and enforceable. They note that, since the Ohio court of appeals issued its decision in this case, a Pennsylvania Superior Court has overruled the Erie County decision awarding custody and support to the Bimbers, and Flynn has gained custody of the triplets. They argue that surrogacy contracts held unenforceable in a 1982 Ohio Attorney General's ruling and in court cases cited by the Bimbers were clearly distinguishable from the contract in this case because those cases involved prenatal agreements by a woman to have her own egg fertilized and deliver a child, and then to surrender all parental rights to the father. In this case, they assert, Flynn is unquestionably the biological father of the triplets while Danielle Bimber is not their biological mother. Therefore, they say, the contract does not offend the public policy against "selling" children because Bimber had no parental rights to surrender either at the time she entered into the surrogacy contract or at the time the children were born.
[Meredith R. Miller]
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