Surrogacy Contracts Approved by Supreme Court of Tennessee

Tennessee law case summary on surrogacy contracts in family law from the Supreme Court.

In re Baby – Tennessee divorce surrogacy in Tennessee

L.G. and A.T. were citizens of Italy and were unable to have children.  In 2010, they contacted a surrogacy agency in the United States.  They were living together but not married, since they were waiting for the Catholic Church to approve the annulment of the woman’s previous marriage.  They were put into contact with J.J.E. and her husband J.M.M, who were residents of Tennessee.

In 2010, the four entered into a surrogacy agreement under which the surrogate mother would be artificially inseminated by the sperm of the Italian intended father.  The Tennessee surrogate and her husband agreed to relinquish custody of the child to the Italian intended parents.  The agreement specified that Tennessee law applied.  The surrogate mother was paid a total of $73,000 to cover medical and legal fees, as well as pain, suffering, and other expenses.  The contract stated that no amount was being paid for granting of custody of the child.

Seventeen days before the birth of the child, a Tennessee juvenile court magistrate issued an order forever terminating the rights and responsibilities of the surrogate mother and her husband.

The girl was born on January 7, 2012, and the intended parents were present for the birth.  Shortly after the birth, the intended mother had to return to Italy to care for her elderly parents.  Meanwhile, the medical personnel advised the surrogate mother that the surrogate should breastfeed the child for a short time.  She nursed the baby for several days, and the intended father assisted in the daily care.

Less than a week later, the surrogate mother obtained a new lawyer and filed a motion to amend the prior order.  One of the grounds for that petition was that the intended parents were not married.  They immediately remedied that by getting married in Williamson County, Tennessee.  The juvenile court denied the mother’s motion and ordered her to surrender the baby to the intended parents.  The surrogate mother appealed to the Tennessee Court of Appeals.  She argued that the juvenile court lacked jurisdiction, that the contract was invalid because the intended parents were not married at the time it was executed, and that the juvenile court should have determined the best interests of the child.  On January 22, 2013, the Tennessee Court of Appeals affirmed the lower court’s judgment.  The surrogate mother then appealed to the Tennessee Supreme Court, which agreed to hear the case.  The high court first noted that its duty was to determine the intent of the legislature, without broadening the scope of the statute.

Tennessee has a surrogacy statute, which differs from the statutes adopted in other states.  In this case, however, the statute did not resolve all of the issues, and the court was required to look to the underlying public policy principles.  The court noted that it was obligated to invalidate any private contract that is contrary to the public policy of the state, but that this must be done with caution, in light of the freedom to contract.

For guidance, the court first looked at the statutes regulating unlicensed adoption.  Among other things, these statutes prevent payment of money in exchange for surrendering custody of a child.  The court looked at similar statutes in other states, and noted that courts in those states did not apply these “baby-selling” statutes to surrogacy contracts.  It agreed with those courts that a surrogacy contract was not prohibited by those statutes.

The high court then looked at the Tennessee custody statutes.  It held that those statutes would void any surrogacy contract that was contrary to the best interests of the child.  However, only those portions that were contrary to the child’s interest would be unenforceable.

The high court also examined the Tennessee statutes relating to termination of parental rights and concluded that none of them demonstrated a public policy that would forbid the enforcement of surrogacy agreements.  It did, however, find that those statutes served as a guide for the courts in interpreting surrogacy agreements.

After stating these principles, the court turned to the facts of the case.  It first noted that the transfer of custody to the intended father was done only after the trial court had essentially concluded that the process was, indeed, in the child’s best interest.

Some portions of the contract were held invalid.  For example, the court noted that there was no way that the birth mother could relinquish her status as “legal mother” completely.  It held, however, that the remaining terms of the contract could be enforced.

The Supreme Court went on to hold that the juvenile court had jurisdiction over the case and properly exercised it in this case.  The court did go on to say that this was an area that should be resolved more clearly by legislative action, and suggested that the legislature should provide more guidance as to such contracts and the procedures for enforcing them.

Justice Koch concurred with the high court’s decision, but stressed the need for the legislature to provide more guidance.

No. M2012-01040-SC-R11-CV (Tenn. Sept. 18, 2014).

See original opinion for exact language.  Legal citations omitted.