What a mess. What a God-awful mess the new reproductive technologies in general—and commercial surrogacy, in particular—are making of family life. What a legal, emotional, and moral mess.
Case in point: A commercial surrogacy contract was litigated in Tennessee all the way to the state’s Supreme Court—which was forced to sort out the chaos that resulted from the purchase of a conception, gestation, and birth. Despite going all the way to the top, the ultimate decisions about the child will require still more litigation.
Like I said: What a mess.
Here are the facts: Unmarried Italian citizens—”L.G.” the “intended mother,” and “A.T.” the “intended father,” paid more than $73,000 to pay for “expenses” and “pain and suffering” to “J.J.E.,” the surrogate. She agreed to be artificially inseminated with A.T.’s sperm, to gestate any babies conceived, and then surrender the child and her parental rights to the intended parents. In other words, the baby would be the biological child of the intended father and the surrogate mother. In Tennessee such contracts are called “traditional surrogacy,” in contrast to circumstances in which the surrogate mother is not biologically related to the baby to which she gives birth, which is known as a “gestational surrogacy.”
J.J.E. became pregnant after being inseminated. She carried the baby. Shortly before, and pursuant to the surrogacy contract, the parties applied to the Juvenile Court terminate the parental rights of J.J.E., which was granted.
Then, J.J.E. gave birth to L.L.G. But rather than the intended parents immediately taking the baby, as had been planned, she was asked to breast feed the child for a week to promote the baby’s health—a wet nurse “service” not provided for in the surrogacy contract. Apparently, that intimate act changed the mother’s heart. This is not surprising given that women bond emotionally with the babies they carry and nurse—whether biologically related or not—and J.J.E. was the child’s biological mother. J.J.E. hired a lawyer to get out of the deal and the lawsuits flew.
Tennessee permits surrogacy contracts generically, but has not created a specific statute or regulations that governed this situation. After wending through lower courts, the Tennessee Supreme Court, over 39 pages, applied different sections of statutory and state constitutional law—akin to untangling a Gordian Knot—and reached a reasonably cogent legal conclusion.
The decision balanced on whether J.J.E. could waive her parental rights before L.L.G.’s birth. Since Tennessee’s surrogacy statute didn’t say, the court applied adoption law in finding that such a waiver violated Tennessee public policy, and hence could not be enforced even though that course was specifically required by the surrogacy contract. In other words, the situation was analyzed as if it were a private adoption—a reasonable approach.
J.J.E. had not signed away her parental rights after birth, as required by Tennessee adoption law. That meant that the only way she was not the legal mother would be if there were reasons to involuntary stripped of her parental rights, such as in an abandonment situation. Since there was no record that could be applied on that question from the lower courts, J.J.E. remained the legal mother of her baby.
From the decision:
Absent a basis for involuntary termination [it] 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 responsibilities associated with legal parenthood.
The case was returned to the Juvenile Court for further proceedings.
Cutting through the legalese at the end of the decision’s winding road, here how the whole mess all sorted out:
- A.T., the intended and biological father, is a legal parent of the child, with full rights of visitation, custody, and obligations of support.
- J.J.E., the surrogate and biological mother, is also a legal parent with full rights to pursue custody, visitation, and obligations of support.
- Custody, visitation, support, and other such issues will be made in the child’s “best interests,” not based on the terms of the surrogacy contract.
- The intended mother, L.G., is a legal stranger to the child.
- Surrogacy contracts are enforceable in Tennessee generally, but clauses that violate public policy, as occurred here, will not be enforced.
It is also worth noting that the baby is a U.S. citizen, based on both place of birth and citizenship status of the legal mother.) And what about J.J.E.? What the child will think of all this later in life—and how it will impact his or her wellbeing—is anyone’s guess. But hey, the lawyers probably did well.
The ruling all but begs the Tennessee Legislature to create explicit statutes and regulations to apply in surrogacy situations—which range in the country from legal bans on commercial surrogacy to anything goes.
Good luck with that. Surrogacy itself is the problem, with infinite possibilities for creating discord, chaos, and betrayal. Oh what a tangled web we weave when deploying surrogacy technologies to conceive.
Note: In re Baby et. al, Supreme Court of Tennessee at Nashville, No M2012-01040-SC-R11-JV http://tncourts.gov/sites/default/files/inrebabyopn.pdf
Wesley J. Smith, a retired attorney, is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a consultant to the Patients Rights Council.