Law School Case Brief
In re Baby - 447 S.W.3d 807 (Tenn. 2014)
The public policy of Tennessee does not prohibit the enforcement of traditional surrogacy contracts, but does impose certain restrictions. The state's 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.
In early 2010, a man and a woman, both of whom were citizens of Italy, were planning on marrying each other once the Catholic Church approved the annulment of the woman's previous marriage. They engaged the services of a surrogacy agency in the United States after discovering that they were biologically incapable of having a child together. The surrogacy agency arranged for the couple to contact a woman surrogate and her husband, both Tennessee residents, who entered into contract for a "traditional surrogacy," which involves the artificial insemination of the surrogate, who, after giving birth, was 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. The State 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.
Was the enforcement of traditional surrogacy contracts prohibited in the State of Tennessee?
No, but imposed certain restrictions.
The Supreme Court of Tennessee held that the public policy of the State of Tennessee did not prohibit the enforcement of traditional surrogacy contracts, but did impose certain restrictions. According to the Court, the state’s public policy required compliance with the statutory procedures for the termination of parental rights and did 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 the present case, which circumvented the statutory procedures for the termination of parental rights, were unenforceable. The Court averred that because the surrogate retained parental rights unless and until such rights were terminated in a future proceeding, the case was remanded to the juvenile court to address the issues of visitation and child support.
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