Tennessee Surrogate Mother Cannot Change Her Mind at the Last Second

Tennessee law case summary on surrogacy law in divorce and family law from the Court of Appeals.

In re Baby — Tennessee Surrogacy Law in Family Law

In July 2010, Luca G. and Antonella T. (“Intended Father” and “Intended Mother,” respectively), entered into a surrogacy agreement with Jennifer E. (“surrogate”) and Joshua M. (“surrogate’s husband”).  The agreement stated that Intended Father and Intended Mother “are adult individuals over the age of twenty-one in a committed, loving, and stable relationship with one another” and that they desired to enter into the surrogacy 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.” The agreement further provided that “[n]either the surrogate nor the surrogate’s husband desires to have a parental relationship with any child born pursuant to the Agreement.”

In the surrogacy agreement, surrogate and her husband agreed not to “attempt to form any parent-child bond with” any child born pursuant to the agreement and to cooperate with all legal efforts to “secure legal recognition of the Intended Parents’ parent-child relationships with the child or children the surrogate will deliver pursuant to this Agreement.”

In January 2012, surrogate filed a motion for relief from the final judgment. In both motions, surrogate argued that there was no “surrogate birth” under the Tennessee surrogacy statutes because the intended parents were not married (but did marry, however, weeks later).  Surrogate’s motions were denied.

The trial court found 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. 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 wanted to change her mind only weeks prior to the child’s birth.

On appeal, surrogate raised the following issues, among others:  whether the trial court (i) erred in enforcing the agreement because the intended parents did not comply with the definition of surrogate birth in the state statutes; and (ii) erred in upholding the surrogacy agreement and failing to perform a best interests analysis.

The court of appeals commented that it would be “absurd” to adopt the position that this was not a surrogate birth merely because the Intended Parents married 20 days after the birth of the child.  As the trial court also discussed, surrogate knew the marital status of the intended parents when she signed the surrogacy agreement, and for more than a year, the parties acted in reliance on the agreement.  Further, surrogate accepted 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. Surrogate asserted that the trial court erred in terminating her parental rights when she did not have legal representation.  The appellate court did not see it that way and disagreed with her arguments.

The court of appeals noted that surrogate willingly signed a valid surrogacy contract in which she stated her intent not to have a parental relationship with the child and to take whatever actions were necessary to make Intended Father and Intended Mother the child’s legal parents. In addition, surrogate was represented by counsel at the time when she entered into the surrogacy agreement.

Surrogate’s argument that the trial court erred in failing to perform a best interest analysis also failed.  Because surrogacy contracts violate no Tennessee law and have been recognized by the legislature in the adoption statutes, the court of appeals said that it would enforce them until the legislature instructed otherwise. As a result, no best interest analysis was required where there was a valid surrogacy contract because the surrogate had already given up her parental rights.

No. M2012-01040-COA-R3-JV, 2013 WL 245039 (Tenn. Ct. App. Jan. 22, 2013).

See original opinion for exact language.  Legal citations omitted.

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