Guest Blogger: Let’s ask a legal expert

In a 4-3 decision, the Ohio Supreme Court upheld a gestational surrogacy contract, against a surrogate who sued to be the mother, reasoning that the contract did not violate Ohio's "pubic policy."

Background on the case:

The surrogate delivered triplets created from an anonymous egg donor and the intended father's sperm. The agreement signed by the surrogate, her husband and the intended father provided that the surrogate will ". . . not attempt to form a parent-child relationship with any child conceived pursuant to the contract." The contract also required the surrogate to terminate her parental rights. This language is typical of important language that every surrogacy contract should have.

At trial, the surrogate won. The trial court concluded that any contract that requires a surrogate to relinquish her parental rights in exchange for money would ". . . violate Ohio's public policy and cannot be enforced." The Ohio Appellate Court, as well as the Ohio Supreme Court reversed the trial court, finding that the surrogacy contract did not violate Ohio's public policy, and by inference that gestational surrogacy contracts are enforceable in Ohio.

"Public policy" is an interesting and important legal concept that will increasingly be the central issue in future surrogacy cases across the nation as state courts struggle with surrogacy contracts. The difference between the majority opinion and the dissenting opinion highlights the importance of how we define public policy issues in the surrogacy setting.

The majority opinion concluded that ". . . nothing in the laws of Ohio prohibits gestational-surrogacy contracts or enforcing the terms of the contract . . ." The majority opinion considered and rejected the argument that the surrogate was selling her baby. In fact, the majority opinion wrote that the state of Ohio had no public policy regarding surrogacy due to the fact that Ohio had no surrogacy statute, nor had the Ohio legislature ever articulated a public policy regarding surrogacy.

The dissenting opinion gave signals that this area of the law may still be unsettled in Ohio. However, in my opinion, the dissent is dizzyingly circular. By assuming that the child is the surrogate's offspring, it concluded that the surrogacy contract runs contrary to Ohio's public policy of prohibiting ". . . inducements to parents to part with their offspring." In other words, if the court bases its opinion on the assumption that a surrogate is selling her baby, then obviously the contract violates the public policy that prohibits "baby selling."

The majority opinion concluded that a written surrogacy contract is an entirely appropriate way for the parties to "understand their rights." And while reserving the right to treat artificially inseminated surrogacy contracts in an entirely different light, the court also pointed out in relation to gestational surrogacy agreements that ". . . requiring them [the parties] to honor the contract they entered into is manifestly right and just."

Attorney Thomas M. Pinkerton, Partner, National Fertility Law