TBA Law Blog


Posted by: Christy Gibson on Oct 6, 2014

In re Baby, et al. (Tennessee Supreme Court, September 18, 2014)

*By:  Helen Rogers

An Italian man and woman were unable to have children together, and entered into a contract with a Tennessee woman who consented to act as their surrogate.  The surrogate’s husband was also a party to the contract.  The parties contracted for a “traditional” surrogacy, which involves 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 of the parties filed a joint petition in Juvenile Court in Davidson County to declare the paternity of the child, grant custody to the intended parents, and terminate the parental rights of the surrogate.  The Magistrate granted the petition, and less than a month later, the surrogate gave birth.  Following the advice of medical personnel, the parties agreed that the surrogate should breast feed the child for a short period of time in the interest of providing the best possible nutrition. 

When the child was almost a 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, and Juvenile Court Judge Betty Green upheld the ruling, and the Court of Appeals affirmed.  The Supreme 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. 

The Supreme Court held that public policy of this State does not prohibit the enforcement of traditional surrogacy contracts, but does impose certain restrictions.  The public policy requires compliance with the statutory procedures to 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 surrogacy procedure for the termination of parental rights are unenforceable.  The Supreme Court further held that the Juvenile Court properly exercised jurisdiction over the issues of paternity and custody, but vacated 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 a surrogate retains parental rights unless and until such rights are terminated in a future proceeding, the case was remanded to the Juvenile Court to address the issues of visitation and child support. 

This opinion is a thorough analysis of Tennessee’s Constitution, the statutory scheme regarding surrogacy, finding that

Under this framework, the parties to a traditional surrogacy contract may properly carry out the contractual terms by complying with any of the available statutory methods for terminating a biological mother’s parental rights.  If the termination proceedings are of a voluntary nature, then termination may occur without a showing that a surrogate is unfit, or that substantial harm to the child would occur absent termination.  If a surrogate contests the termination of her parental rights, however, the termination proceedings taken on an involuntary nature, then the statutory procedures for safeguarding a parent’s constitutional rights must be satisfied before contractual terms relating to the termination can be enforced. 

It is interesting to note that the surrogacy contract did contain a severability clause.  The Court of Appeals found that the statutory procedures for terminating the parental rights of a traditional surrogate are limited to involuntary termination, parental consent to adopt, and surrender.  Since neither of the parties or the Juvenile Court complied with any of those procedures in this case, the portion of the Juvenile Court Order terminating parental rights of the surrogate must be set aside, but the Supreme Court ruling did not preclude the termination of parental rights of the surrogate in a future proceeding.  Absent the basis for involuntary termination, however, termination may only occur if the surrogate executes a surrender or consents to a petition for adoption.  Then until and unless the termination of parental rights of the surrogate occurs, she will retain both the rights and responsibilities associated with legal parenthood.  The Supreme Court strong recommends that the legislature step in and provide some guidance, and outlines three different approaches that various states have taken on this subject.  The TBA Family Law Section and the TBA Family Law Section Code Subcommittee are both studying this issue.

Justice Koch filed a concurring opinion, citing that this was a case of first impression regarding the enforceability of an international traditional surrogacy contract, and will have far-reaching ramifications, both in Tennessee and beyond.  While he concurs with the general terms of the Court’s disposition of the case, he does not concur with the Court’s conclusions that “traditional surrogacy contracts do not violate public policy as a general rule.”  Justice Koch did not believe that this case was an appropriate vehicle for the Supreme Court to broadly declare that traditional surrogacy agreements, or any other kind of surrogacy agreement for that matter, are consistent with Tennessee’s general public policy.  Justice Koch cites that by some estimates, the United States is now second only to India in providing surrogate mothers with over 1400 babies born in the United States each year for international parents.

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*Helen Sfikas Rogers
 Attorney at Law
 Rogers, Kamm & Shea
 The Wind in the Willows Mansion
 2205 State Street
 Nashville,Tennessee 37203
 615-320-0600

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