In re Baby

447 S.W.3d 807

In re BABY et al.

No. M2012–01040–SC–R11–JV.

Supreme Court of Tennessee, at Nashville.

Oct. 1, 2013 Session Heard at Murfreesboro.¹

Sept. 18, 2014.

Shelley S. Breeding and Allison J. Starnes–Anglea (at trial and on appeal), Knoxville, Tennessee, and Benjamin G. Smith (at trial), Nashville, Tennessee, for the appellant, J.J.E.

Benjamin Papa and Kimberly K. Huguley, Brentwood, Tennessee, for the appellees, L.G. and A.T.

OPINION

GARY R. WADE, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined. WILLIAM C. KOCH, JR., J., filed a concurring opinion.

GARY R. WADE, C.J.

A man and woman who were unable to have children together entered into a contract with a woman who consented to act as a surrogate. The 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. 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. This 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.

After careful consideration of these important questions, we hold that the public policy of this state does not prohibit the enforcement of traditional surrogacy contracts, but does impose certain restrictions. As is relevant here, our 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. Accordingly, the contractual provisions in this case circumventing the statutory procedures for the termination of parental rights are unenforceable. We further hold that the juvenile court properly exercised jurisdiction over the issues of paternity and custody. We vacate the portion of the juvenile court's order terminating the parental rights of the surrogate, but otherwise affirm the judgments of the juvenile court and the Court of Appeals. Because the surrogate retains parental rights unless and until such rights are terminated in a future proceeding, we remand the case to the juvenile court to address the issues of visitation and child support.

I. Facts and Procedural History

In early 2010, L.G.² (the “Intended Father”) and A.T. (the “Intended Mother”) (collectively, the “Intended Parents”),³ both of whom are citizens of Italy, engaged the services of a surrogacy agency in the United States after discovering that they were biologically incapable of having a child together. At that time, the Intended Parents had been in a relationship for some time but had not married because they were waiting for the Catholic Church to approve the annulment of the Intended Mother's previous marriage. The surrogacy agency arranged for the Intended Parents to contact J.J.E. (the “Surrogate”) and her husband, J.M.M., both Tennessee residents.

The parties decided to go through with a surrogacy arrangement and negotiated the terms. Each couple was represented by legal counsel during the negotiations. In July of 2010, the Intended Parents, the Surrogate, and the Surrogate's husband entered into a contract that provided for the Surrogate to be artificially inseminated by the sperm of the Intended Father, and, in the event of a successful pregnancy, to relinquish the child to the custody of the Intended Parents at the time of birth. The contract included the following terms:

1.... [T]he Intended Parents[ ] are ... over the age of twenty-one [and are] in a committed, loving, and stable relationship with one another. They desire to enter into this Agreement in order to have one or more children that are biologically related to one of them, and to take these children into their home and raise them as their parents.

2. The Surrogate ... is an adult who ... desires to enter into this Agreement in order to assist the Intended Parents to become parents.

....

4. All parties to this Agreement ... have full capacity to contract for themselves.

5. The purpose of this Agreement is to enable [the Intended Parents] to have a child together.

6. Neither the Surrogate nor the Surrogate's husband desires to have a parental relationship with any child or children born pursuant to this Agreement. Despite the fact that the Surrogate's eggs will be used to help create any child or children born pursuant to the Agreement, both she and her husband believe that any child or children she delivers as a result of this Agreement is morally, biologically, ethically, and contractually the child or children of the Intended Parents. In addition, [the] Surrogate states that she does not believe any action she takes pursuant to this Agreement makes her a “mother” or “parent” to the child or children she delivers. Such actions include, but are not limited to, producing eggs (genetic material), gestation, nourishing the child or children during pregnancy, making personal choices during the pregnancy that place the best interests of the child or children above her own, and giving birth to the child or children....

7. This Agreement in no way constitutes payment for a child, placement of a child, relinquishment of parental rights, or consent to adoption.

....

11. All parties acknowledge that legal issues surrounding surrogacy are an unsettled area of law in the state of Tennessee. All parties acknowledge that statutes regarding domestic relations and court opinions in the area of domestic relations create certain presumptions and assumptions that are not appropriate in this matter, including but not limited to:

a. The woman who gives birth to the child is the child's “mother.”

b. The woman who gives birth to a child is obligated to rear and support the child, along with her husband, if she is married.

c. The right to parent and raise a child lies with the woman who gave birth to the child and her husband, if she is married.

The parties acknowledge that these and other presumptions of the law arise from cases or statutes that do not relate to pregnancies that result from surrogacy arrangements. The parties ... desire that any disputes that arise from or in connection with this Agreement, or that arise from any aspect of their relationship be resolved by application of the terms of this Agreement and the intentions of the parties as expressed in this document.

....

18. Avoidance of Parent–Child Bond by Surrogate and by Surrogate's Husband—The Surrogate and her husband understand and affirm that, in the best interests of any child born pursuant to the terms of this Agreement, neither will attempt to form any parent-child bond with any such child.

19. Legal Recognition of Intended Parents' Parent–Child Relationship—The Surrogate and Surrogate's husband agree that ... they will cooperate with any and all legal efforts on the part of the Intended Parents to secure legal recognition of the Intended Parents' parent-child relationships with the child or children the Surrogate will deliver pursuant to this Agreement....

....

[The Intended Parents] acknowledge that they are both obligated by this Agreement to take all necessary steps to finalize the legal recognition of the parent-child relationship between them and the child or children....

22. Custody—The Intended Parents shall take physical custody of the child or children immediately upon birth. [The Surrogate] shall execute a Power of Attorney if necessary, immediately upon the birth of the child, granting the Intended Parents all rights to make all parental decisions relating to the child, including all medical decisions, and the right to take the child or children from the birthing facility after birth and care for the child or children pending any court proceedings that may be necessary to secure legal recognition of the parental relationship of the Intended Parents to the child or children born pursuant to this Agreement. [The Surrogate] acknowledges that the best interest of the child or children is served by the execution of the Power of Attorney called for in this paragraph and by the Intended Parents taking immediate custody of the child or children.

....

49.... If any provision of this Agreement is deemed to be invalid or unenforceable by a [c]ourt of competent jurisdiction, such provision shall be severable from the remainder of this Agreement. Any invalid or unenforceable provision of this Agreement shall not cause the remainder to be invalid or unenforceable. Any invalid or unenforceable provision of this Agreement deemed invalid or unenforceable due to its scope or breadth shall be deemed valid to the extent of the scope or breadth permitted by law.

(Emphasis added.)

The contract required the Intended Parents to pay the Surrogate for her pain and suffering, a portion of her legal fees, all medical expenses associated with the pregnancy not covered by insurance, and various other expenses, such as lost wages, transportation costs, housing costs, and maternity clothes. The contract...