IN RE BABY ET AL. - Articles

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Posted by: Tanja Trezise on Feb 24, 2015

Head Comment: CORRECTION: Page 3, last line - "bests" changed to "best" Page 9, last line - "(Graham v. Caples" changed to "(citing Graham v. Caples" Page 12, middle of page - "unemancipated minor or who has a “a mental illness or developmental disability”)." changed to "unemancipated minor or who has “a mental illness or developmental disability”)." Page 27, 2nd line under Tennessee Constitution - changed hard return to a space at end of line

Court: TN Supreme Court

Attorneys 1:

Shelley S. Breeding and Allison J. Starnes-Anglea (at trial and on appeal), Knoxville, Tennessee, and Benjamin G. Smith (at trial), Nashville, Tennessee, for the appellant, J.J.E.

Attorneys 2:

Benjamin Papa and Kimberly K. Huguley, Brentwood, Tennessee, for the appellees, L.G. and A.T.

Judge(s): WADE

A man and woman who were unable to have children together entered into a contract with a woman who consented to act as a surrogate. The surrogate’s husband was also a party to the contract. The parties contracted for a “traditional surrogacy,” which involves the artificial insemination of the surrogate, who, after giving birth, is meant to relinquish the child to the biological father and the intended mother. Prior to the birth of the child, all parties filed a joint petition asking the juvenile court to declare the paternity of the child, grant custody to the intended parents, and terminate the parental rights of the surrogate. A magistrate for the juvenile court granted the petition. Less than a month later, the surrogate gave birth, and, following the advice of medical personnel, the parties agreed that the surrogate should breastfeed the child for a short period of time in the interest of providing the best possible nutrition. When the child was almost one week old, the surrogate filed a series of motions asking the magistrate to vacate the prior order, set aside the surrogacy contract, and award her custody. The magistrate denied the motions, the juvenile court judge upheld the ruling, and the Court of Appeals affirmed. This Court granted the surrogate’s application for permission to appeal to consider issues of public policy, subject matter jurisdiction, paternity, custody, and the termination of parental rights. After careful consideration of these important questions, we hold that the public policy of this state does not prohibit the enforcement of traditional surrogacy contracts, but does impose certain restrictions. As is relevant here, our public policy requires compliance with the statutory procedures for the termination of parental rights and does not allow parties to terminate the parental rights of a traditional surrogate through judicial ratification of a surrogacy contract prior to the birth of the child. Accordingly, the contractual provisions in this case circumventing the statutory procedures for the termination of parental rights are unenforceable. We further hold that the juvenile court properly exercised jurisdiction over the issues of paternity and custody. We vacate the portion of the juvenile court’s order terminating the parental rights of the surrogate, but otherwise affirm the judgments of the juvenile court and the Court of Appeals. Because the surrogate retains parental rights unless and until such rights are terminated in a future proceeding, we remand the case to the juvenile court to address the issues of visitation and child support.