On December 20, 2007 the Ohio Supreme Court determined that gestational surrogacy agreements do not violate Ohio public policy and therefore may be enforced. In J.F. v. D.B., a dispute arose concerning the enforceability of a surrogacy agreement between the surrogate and her husband and the sperm donating intended father. The eggs were donated by a non-party to the lawsuit and thus the surrogate had no biological connection to the children. The Ohio High Court determined that since Ohio had no formulated public policy against surrogacy agreements, the contract inherently did not violate any state policy and was thus enforceable. ” No public policy is violated when a gestational-surrogacy contract is entered into, even when one of the provisions requires the gestational surrogate to not assert parental rights regarding children she bears that are of another woman’s artificially inseminated egg.” The Court went on to distinguish between gestational surrogacy contracts, in which the surrogate carries another’s fertilized egg, vs. a traditional surrogacy agreement where the surrogate carries her own egg. The court specifically refused to speak to the public policy of traditional surrogacy agreements and limited its holding to gestational surrogacy agreements.
Interestingly, the majority never speaks to the public policy concerning gestational surrogacy agreements–it only holds in the absence of a public policy against such an agreement, gestational surrogacy contracts are enforceable. Does the High Court’s affirmation of the gestational surrogacy contract, absent a formulated public policy against such a contract, determine the policy in favor of such agreements? Indeed–despite the court’s reluctance to directly speak to the issue.
The dissent pointed out the majority’s evasion, correctly identifying the real issue as whether the contract violated public policy, not a default acceptance based upon the absence of any articulated public policy. The dissent opined that the contract did violate Ohio public policy because of state policy to safe-guard children and to disallow the establishment of parental rights as an act of commerce. For example, the Ohio adoption acts disallows payment for the relinquishment of parental rights in an adoption proceeding, evidencing the policy against surrender of children by a parent for compensation. Since gestational surrogacy agreements compensate the parties for their involvement, they create children for profit. Since it was against public policy to create children and establish parentage in a commercial transaction, the contract violated Ohio public policy.
While Lex Familia disagrees with the ultimate conclusion, that a gestational surrogacy agreement violates public policy, the dissent was well reasoned until its ultimate conclusion that, “enforcement of this contract, which viewed realistically is no less than a contract for the creation of a child, would open Ohio to the very real likelihood of being an interstate, and perhaps international marketplace for gestational surrogacy.” One has visions of nefarious baby brokers from foreign lands invading Akron and Toledo in search of profits. The well constructed argument of the dissent lost its punch with this unlikely scenario.
Gestational surrogacy is a appropriate and legitimate means of helping infertile couples. It should be regulated as Illinois has chosen to do, so that all parties and the resulting children can be protected by the law. Indeed, gestational surrogacy contracts are agreements for the creation of life. But this doesn’t inherently invalidate their legitimacy as suggested by the dissent. When all parties’ rights and responsibilities are addressed in advance, the state’s oversight responsibilities are accomplished. This should be enough to keep us safe from the foreign surrogacy marauders in any event.
Peskind Family Law Insights 