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by Justice Paul E. Pfeifer
Here at the Supreme Court of Ohio it’s not uncommon for us to review cases that involve disputes over contracts. That’s why a case that recently came before us, which at its heart was just that – a contract dispute – might not have appeared terribly unusual at first glance. But it was the underlying reason for the contract that made this case something less than ordinary.
The contract in dispute involved a subject matter that our predecessors on this court likely never imagined. But that was before medical science led us into realms that, just a generation ago, seemed impossible.
It all began when several parties entered into a contract to produce a child. Now, besides the tried-and-true old fashioned method, there are several other options currently available to achieve parenthood. Most of those options involve some sort of artificial insemination or surrogate mothers. But this case was a bit more complicated.
To sum it up, here’s what happened (for privacy’s sake, we will use initials in place of names): Eggs from one woman were artificially inseminated with semen from a man – J.F. – and then implanted in yet another woman – Mrs. B. – who subsequently gave birth to triplets.
Prior to these events, all three parties – J.F., the egg donor, Mrs. B. and her husband Mr. B – had all executed something called a gestational-surrogacy contract. The agreement said that Mrs. B. would “not attempt to form a parent-child relationship with any child conceived pursuant to the contract” and would “institute proceedings” to “terminate her parental rights” upon the birth of the children.
In return for giving birth to the children, J.F. – who ultimately intended to have custody of and raise the children – agreed to pay Mrs. B. $20,000 plus expenses.
The medical science part of the arrangement worked perfectly. The eggs from the donor were successfully inseminated with J.F.’s semen, and Mrs. B. carried the fertilized eggs to full term. The triplets went to live with J.F., their biological father.
But things began to unravel when Mrs. B. had a change of heart – after carrying the babies for nine months she didn’t want to give them up. Consequently, a custody dispute followed the birth of the triplets.
When Mrs. B. tried to gain custody of the triplets, J.F. sued Mrs. B. for breach of contract. But the trial court granted judgment for Mrs. B. and her husband. The trial court concluded that the provisions of the surrogacy contract that required Mrs. B. to relinquish parental rights, and that also would allow J.F. to recoup child-support payments from Mrs. B. if she was awarded custody, violate Ohio’s public policy and cannot be enforced.
That ruling, however, was reversed by the court of appeals. The court of appeals concluded that nothing in the laws of Ohio prohibits gestational-surrogacy contracts or enforcing the terms of the contract against Mrs. B. and her husband.
After the court of appeals ruling the case came to us for a final review. The sole issue before us was whether the contract entered into by J.F., Mrs. B. and her husband, in which Mrs. B. agreed to be a gestational surrogate, is contrary to the public policy of Ohio.
In fact, our court has had little occasion to discuss surrogacy contracts. In one case, from 1990, we considered factors in favor of and against a public trial in a case involving a surrogacy contract. One of the factors in favor of a public trial was the opportunity “to study the potential pitfalls of surrogacy contracts.”
In that same case, we also said that the “problems associated with surrogate parenting and the custody and dependency actions which may accompany agreements,” such as the one in that case, “are of significant public interest. Access to the courts can promote informed public discussion on these matters.”
These statements are indicative of a lack of a declared public policy for or against surrogacy contracts. Furthermore, as far as we can tell, neither the General Assembly nor any other governmental body in Ohio has ever enunciated a public policy concerning gestational surrogates. Put simply, it is fairly uncharted territory.
A written contract defining the rights and obligations of the parties seems an appropriate way to enter into surrogacy agreement. If the parties understand their contract rights, requiring them to honor the contract they entered into is manifestly right and just.
Even so, in a case dating all the way back to 1916, our court declared that the “liberty of contract is not an absolute and unlimited right, but upon the contrary is always subservient to the public welfare.”
In that same case our court said that the “public welfare is safeguarded, not only by Constitutions, statutes, and judicial decisions, but by sound and substantial public policies underlying all of them.”
In arguing her case, Mrs. B. cited numerous state laws and court cases to support her position that the public policy of Ohio is undermined by the contract that she and J.F. entered into and, therefore, that that contract is unenforceable. For instance, she cited one state law which prohibits anyone from offering “inducements to parents to part with their offspring.”
But none of the laws or cases she cited convinced us that Ohio has a public policy concerning gestational surrogacy. We concluded, therefore, that Ohio does not have an articulated public policy against gestational-surrogacy contracts.
There are instances in which a more “traditional” surrogate takes part – a woman whose pregnancy involves her own egg. But this case did not involve, and we drew no conclusions about, traditional surrogates and Ohio’s public policy concerning them.
Given the facts of this case, we determined – by a four-to-three vote – that no public policy is violated when a gestational-surrogacy contract is entered into, even when one of the provisions requires the gestational surrogate not to assert parental rights regarding children she bears that are of another woman’s artificially inseminated egg.
It’s a brave new world.EDITOR'S NOTE: The case referred to is J.F. v. D.B., 116 Ohio St.3d 363, 2007-Ohio-6750. Case No. 2006-0843. Decided Dec. 20, 2007. Majority opinion written by Justice Paul E. Pfeifer.