January 3, 2008
Surrogacy Contract Not Against Ohio Public Policy
On Dec. 20, 2007, the Ohio Supreme Court held that the surrogacy contract at issue (involving a surrogate who was not genetically related to the child she carried to birth) was not against public policy. J.F. v. D.B., 2007 WL 4531973 (Ohio Dec. 20, 2007). It is important to note that the court was careful to limit its analysis to the issue at hand and specifically stated that this did not resolve the issue of surrogacy contracts involving women who were genetically related to the child. Id. at *2.
In this case the biological father contracted with a gestational surrogate to carry eggs implanted from a nonparty donor. The surrogate contract stated that the surrogate would be paid $20,000 for her services, require her to relinquish her parental rights and permitted the bio father to avoid child support payments from the surrogate if she was awarded custody. Id. at *1.
The court noted that no statute directly controlled the issue and all of the statutes referred to by the surrogate (trying to invalidate the contract to avoid claim of breach of contract & damages) related to inducement of payment for adoption. The court noted that adoption is not the same thing as gestational surrogacy and dismissed these statutes are off-point. Id. at *3
The dissent points out that the $20,000 payment for "services" is too hard to separate from the requirement of relinquishment of parental rights, which cannot be bargained for. Id. Also, in response to the argument that the surrogate never had any parental rights to begin with, the dissent state that it is unclear under Ohio law whether the gestational surrogate has any parental rights which could be relinquished. Id. at *4. Although there is no improper motive here, the contract is also contrary to public policy because it allows the father of the children to avoid potential child support obligations if custody is awarded to the surrogate in the future. Id. Finally, the dissent points out that this comes to close to a multistate commercial enterprise which, if unregulated, could permit child production contracts. Id. at *4-5.
This case raises many interesting legal questions:
(1) Should gestational surrogacy contracts be treated differently depending upon whether the surrogate is an egg donor or genetically unrelated to the child?
(2) Is the portion of the contract relieving the father of all child support obligations if the surrogate is awarded custody in the future contrary to public policy?
(3) Is the dissent's concern with multistate commercial child production contracts valid? Or, is this the type of practice that will be regulated based on state laws like any other multi-state activity--through a forum selection clause? As long as the claimants are not "forum shopping" in bad faith, can't they provide for the appropriate forum in the contract itself--avoiding the argument that the contract is somehow unregulated?
(4) Should it be legal for surrogacy contracts to provide compensation for "services" to cover expenses such as hospitalization and wellness care? Is this really a ruse for payment to relinquish parental rights?
(5) Would it be better if state legislatures took matters into their own hands by passing legislation relating to surrogacy? Should legislatures limit surrogacy in any way?
I will think about these matters some more as time progresses--but I welcome any and all thoughts and comments you might have on this issue.
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