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September 9, 2005
Case Law Development: Jurisdiction and Parentage Decision in Surrogacy Contract Situations
The Ohio Court of Appeals needed to unweave the tangled web of assisted reproduction and jurisdiction in this case involving three parents, from three different states, each claiming to be the legal parent of triplets. The case has made some news simply because the story is so intriguing. For law professors, this would make a great case study to help the students trace through the provisions of the UCCJA and PPKA and differentiate parentage determinations from custody decisions.
Rice v. Flynn, 2005 Ohio 4667; 2005 Ohio App. LEXIS 4205 (September 7, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/9/2005/2005-ohio-4667.pdf
(last visited September 9, 2005)
Dad (from Ohio) donated the sperm, Biological Mom (from Texas) donated the egg, and Gestational Mom (from Pennsylvania) donated the womb. This was all part of a surrogacy contract in which neither woman was to be the mother of the child. When the triplets arrived, all claimed custody. Dad then brought an action for custody against Gestational Mom in Pennsylvania. The court held that the parties' surrogacy contract was void and gave temporary custody to Gestational Mom. The problem was, Biological Mom, wasn't given notice of the proceedings. Biological Mom then sues Gestational Mom and Dad in Ohio, asking that the court establish her parentage and that of Dad. On cross motions for summary judgment, the court found that it had no jurisdiction over the parentage of Gestational Mom, as that issue was for the Pennsylvania courts. It did assert jurisdiction over the issue of parentage (but not parenting) of Dad and Biological Mom, finding that they were indeed the parents of the child.
The court of appeals affirmed the trial court’s decision as to jurisdiction, noting that under the UCCJA and PPKA, the Pennsylvania court had exclusive jurisdiction over the “parenting” issues in the case, but not over the “parentage” issues of Dad and Biological Mom, as there was no notice given to her. Thus, the Ohio trial court had jurisdiction to determine that Biological Mom and Dad were the mother and father, but not to allocate parental rights and responsibilities.
The court reversed the trial court, however, on the basis that, while the court properly based the first part of its decision on the genetic testing of the parents, it did not examine whether the genetic parents waived or relinquished parental rights. This second step is necessary in any case involving a gestational surrogacy contract.