Posted by: K.O. Herston | March 7, 2013

Surrogacy Agreement Upheld in Nashville Child Custody Dispute: In re Baby

Knoxville Child Custody AttorneyFacts: An Italian couple (“Intended Parents”) entered into a surrogacy agreement with a Tennessee woman (“Surrogate”) and her husband (Surrogate’s Husband). The surrogacy provided that Intended Parents desired to have a child biologically related to one of them, that Surrogate and her husband did not want to have a parental relationship with any child born pursuant to the agreement, that Surrogate and her husband would not attempt to form any parent-child bond and child born as a result of the agreement, and that Intended Parents would take physical custody of the child immediately upon birth.

Surrogate then became pregnant as a result of artificial insemination with the sperm of Intended Father. Shortly before the child’s birth, all parties to the agreement filed a joint petition to declare the parentage of Intended Parents and ratify the surrogacy agreement. The trial court declared Intended Parents to be the legal parents of the unborn child immediately upon the child’s birth.

The child was born. All parties agreed it would be in the child’s best interest for Surrogate to nurse the child for a few days. Six days later, Surrogate filed a petition to prevent the child from leaving he country. The trial court denied the petition and directed that physical custody of the child be given to Intended Parents.

Surrogate also filed a motion to alter or amend the prior order establishing the parental rights of Intended Parents and ratifying the surrogacy agreement. The trial court denied this motion, stating:

[T]he court finds that there was a valid surrogacy agreement entered into with full knowledge of all relevant facts by the parties. The parties acted upon this agreement in good faith until shortly after the birth of the child. The Surrogate received well over $30,000 in reimbursement under the agreement. She carried the child to term pursuant to the agreement. At this point, she wishes to change her mind. She knew what the surrogacy agreement required. She, only weeks prior to the child’s birth[,] co-petitioned the court to ratify the agreement.

Surrogate appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Surrogate first argued the trial court lacked subject matter jurisdiction to uphold the surrogacy agreement.

Tennessee Code Annotated § 36-1-102(48)(A)(ii) defines “surrogate birth” as “[t]he insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father’s wife to parent.” Subsection (C) of the same statute provides that the statute shall not “be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly.” The Court describes subsection (C) as “a curious provision” whereby the Tennessee legislature “kicks the can down the road” by leaving it to a subsequent legislature or the courts to authorize surrogacy birth contracts.

The Court concluded:

Tennessee Code Annotated § 36-1-102(48)(A) expressly defines such contracts and does not make them illegal. Rather, the statute “reflects a neutral legislative stance as to the validity and enforceability of surrogacy arrangements.” This is a subject better left to the legislature and we, therefore, decline to find such agreements to be against public policy. Because such contracts violate no law, we will enforce them until the legislature instructs otherwise.

Surrogate then argued the trial court abused its discretion in enforcing the surrogacy agreement because Intended Mother and Intended Father were not married at the time the parties entered into the surrogacy contract (Intended Parents married 20 days after the birth of the child). Surrogate’s argument is rooted in the language of the applicable statutory definition of surrogate birth: “The insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father’s wife to parent.” Tenn. Code Ann. § 36-1-102(48)(A)(ii) (emphasis added). Because Intended Mother and Intended Father were not married at the time the parties entered into the surrogacy contract, Surrogate asserted that the contract violates Tenn. Code Ann. § 36-1-102(48)(A)(ii) and, therefore, the trial court erred in enforcing the contract.

The trial court rejected this argument, writing:

It would be absurd to adopt the position that this was not a surrogate birth because the Intended Parents were married 20 days after the birth of the child. The obvious intent is for the child to be raised in a stable, loving home by committed parents. That is exactly what was intended and what is before this court. . . .  The court agrees with counsel that “to have the child’s entire destiny hinging on the timing of her parents’ marriage is absurd.”

The Court of Appeals agreed, stating:

Surrogate knew the marital status of the intended parents when she signed the surrogacy agreement. For over a year, the parties acted in reliance on the surrogacy agreement, and Surrogate accepted considerable amounts of money from the intended parents. The parties jointly petitioned the trial court for approval of their agreement, and the order entered by the trial court was approved by all of the parties. Moreover, Intended Mother and Intended Father married within a few weeks of the child’s birth. Surrogate’s last-minute change of heart does not provide a reason to invalidate the final judgment approving the surrogacy contract.

The trial court was affirmed.

UPDATE: The Tennessee Supreme Court granted permission to appeal on May 7, 2013. I will blog on that opinion when it is released.

In re Baby (Tennessee Court of Appeals, Middle Section, January 22, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


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