Facts: A man and woman who were unable to have children together (“Intended Parents”) entered into a contract with a woman who consented to act as a surrogate (“Surrogate”). 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.

Over the course of the pregnancy, the Intended Parents paid the Surrogate approximately $73,000 for medical and legal fees and other expenses related to the pregnancy and birth.

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 Intended Parents, and terminate the parental rights of Surrogate. A magistrate for the juvenile court granted the petition. Accordingly, Surrogate’s parental rights were terminated prior to the child’s birth.

Less than a month later, Surrogate gave birth, and, following the advice of medical personnel, the parties agreed 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, Surrogate filed a series of motions asking the magistrate to vacate the prior consent 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. My post on the Court of Appeals opinion can be found here.

Surrogate appealed to the Tennessee Supreme Court.

On Appeal: The Tennessee Supreme Court reversed the Court of Appeals and the trial court.

The only Tennessee law regarding surrogacy is found in the “definitions” section of the statutory chapter covering adoption. Tennessee’s surrogacy statute—Tennessee Code § 36-1-102(48)(A)-(C)—provides, in its entirety, as follows:

(48)(A) “Surrogate birth” means:
(i) The union of the wife’s egg and the husband’s sperm, which are then placed in another woman, who carries the fetus to term and who, pursuant to a contract, then relinquishes all parental rights to the child to the biological parents pursuant to the terms of the contract; or
(ii) 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;
(B) No surrender pursuant to this part is necessary to terminate any parental rights of the woman who carried the child to term under the circumstances described in this subdivision (48) and no adoption of the child by the biological parent(s) is necessary;
(C) Nothing in this subdivision (48) shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the [G]eneral [A]ssembly.

Tennessee’s adoption law provides that a woman may qualify as the legal parent of a child in two ways: (1) by being the biological mother of a child, or (2) by being an adoptive parent of a child. Once a woman attains the status of a legal parent, her parental rights may only be terminated in three ways. First, if there is a statutory ground for termination and the termination of the mother’s rights is in the best interests of the child, an involuntary termination may be warranted. Second, when a mother consents to adoption, her parental rights may be terminated as part of the adoption proceeding. Third, a biological mother may relinquish her rights by executing a “surrender,” which is a document executed under the provisions of Tennessee Code § 36-1-111 by which that parent or guardian relinquishes all parental rights to a child to another person or public child care agency or licensed child-placing agency for the purposes of making that child available for adoption.

Before a parent’s rights can be terminated, there must be a showing that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated. No showing of substantial harm to the child is required where the termination of parental rights is voluntary in nature. Thus, no such showing is constitutionally required for courts to terminate parental rights upon the execution of a surrender or parental consent to an adoption.

The Supreme Court first addressed the public policy concerns, ruling:

[T]he public policy of our state does not preclude the enforcement of traditional surrogacy contracts. Their enforceability, however, is not without bounds. Compensation may not be contingent upon the surrender of the child or the termination of parental rights, and compensation is restricted to the reasonable costs of services, expenses, or injuries related to the pregnancy, the birth of the child, or other matters inherent to the surrogacy process. Moreover, the terms of a surrogacy contract may not dispense with a judicial determination of the best interests of the child. Likewise, the terms of a surrogacy contract may not circumvent the statutes governing a person’s status as a legal parent or the statutory procedures for terminating parental rights. Finally, termination of parental rights in an involuntary proceeding may not occur absent a finding that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated.

Specifically on the termination of Surrogate’s parental rights, the Supreme Court reasoned:

Because the Surrogate is the biological mother of the Child, she qualifies as a legal parent. Our statutes provide no mechanism by which a biological birth mother—including a traditional surrogate—may use a contract to avoid attaining the status of a legal parent or to negate parental status prior to the birth of a child…. [P]arties to a traditional surrogacy contract must comply with our statutory procedures in order to terminate the parental rights of a traditional surrogate. Our statutory procedures unequivocally prohibit the voluntary relinquishment of a biological birth mother’s parental rights prior to birth through either surrender or parental consent to adoption. Thus, the provisions of the contract at issue that attempt to circumvent statutory procedure by terminating or negating the parental rights of the Surrogate prior to birth contravene the public policy of our state. Those provisions are therefore unenforceable and without legal effect….

[T]he statutory procedures for terminating the parental rights of a traditional surrogate are limited to involuntary termination, parental consent to adoption, and surrender. Because neither the parties nor the juvenile court complied with any of these procedures in this instance, the portion of the juvenile court’s order terminating the parental rights of the Surrogate must be set aside. Our ruling does not preclude the termination of the parental rights of the Surrogate in a future proceeding. Absent a basis for involuntary termination, however, termination may only occur if the Surrogate executes a surrender or consents to a petition for adoption.

Furthermore, unless and until termination of the parental rights of the Surrogate occurs, she will retain both the rights and the responsibilities associated with legal parenthood. Accordingly, the case must be remanded to the juvenile court for a determination of visitation pursuant to Tennessee Code §§ 36-6-101 to -612 and child support pursuant to Tennessee Code §§ 36-5-101 to -3111.

The Supreme Court opinion includes the following plea to the General Assembly:

Our surrogacy statute—which defines surrogacy but lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements—leaves parties to surrogacy contracts and courts ill-equipped to deal with the complex questions that inevitably arise in this area of the law. We encourage our General Assembly to follow the lead of other state legislatures that have enacted statutes to address the fundamental questions related to surrogacy. Legislation could provide useful guidance by addressing whether the different types of surrogacy arrangements are compliant with public policy, what requirements the parties must satisfy in order to create an enforceable surrogacy contract, what procedures are available to address disputes arising out of surrogacy agreements, and which courts have jurisdiction to adjudicate those disputes.

Because there was no legal basis for the termination of Surrogate’s parental rights, that portion of the consent order was vacated in the case remanded to the trial court to determine visitation and child support.

Concurring Opinion: Justice Koch wrote separately to express his disagreement with the broad declaration that traditional surrogacy agreements, or any other surrogacy agreement for that matter, are consistent with Tennessee’s public policy.

Rather than broadly stating that “traditional surrogacy contracts do not violate public policy as a general rule,” I would find that the surrogacy agreement in this case is enforceable, except to the extent, as found by the Court, that it is inconsistent with the statutes explicitly governing the termination of parental rights and the care and custody of children born out of wedlock. The broader public policy questions should be left to the General Assembly.

Justice Koch joined the call for legislative action, stating: “The legal rules governing this area are ambiguous, if not non-existent, and they need to be clarified. Until they are, surrogacy contracts in Tennessee will be in legal limbo.”

K.O.’s Comment: What a difficult case. The opinion provides more detail about how the Tennessee Legislature ignored the growing use of assisted reproductive technology and left Tennessee without virtually nothing in the way of statutory guidance regarding surrogate births. Hopefully our elected representatives will finally be forced to address this subject.

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

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