The Court of Appeals of Ohio has finally ruled in a two year old custody battle between a single woman and her gestational carrier. Back in 2007, the Intended Mother, a single woman out of Florida, retained a surrogate agency in Cincinnati to help her have a child to be conceived with the assistance of a gestational surrogate, sperm donor and an egg donor. The Intended Mother, her fiance and the Surrogate signed a Surrogacy Agreement in which the Surrogate agreed to “immediately upon birth, relinquish physical custody of any children born as a result of the surrogacy….. and that any child or children born to Surrogate as a result of this Agreement will be the Intended Mother’s child or children.”

The Surrogate ultimately became pregnant with twins which were delivered more than 3 months prematurely. Sadly, one of the twins passed away and the relationship between the Intended Mother and the Surrogate soured. Litigation ensued with both parties claiming to be the mother and seeking custody of the surviving child. The trial court, back in October of 2008, ruled that the baby had no natural parents and turned to the Surrogacy Agreement for guidance. Initially, the court determined that the Surrogate was the presumptive maternal mother as a result of delivering the child. However, the court also indicated that the presumption could be rebutted by proof that: 1) the Surrogate was not genetically related to the baby and 2) a valid and enforceable surrogate contract existed manifesting the intent of the parties that someone other than the Surrogate was to be the mother. Several months later the trial court, having concluded that the Surrogacy Agreement was valid and enforceable, ruled that the Intended Mother was the legal mother and ordered that physical custody be transferred to the Intended Mother. The Surrogate promptly appealed.

Last week, the Court of Appeals rejected the Surrogate’s claim, holding:

We thus conclude that the record evidence provides clear and convincing evidence rebutting the presumption that appellant is the child’s mother. Appellant stipulated that she is not genetically related to the child. The genetic mother and father of the child are anonymous egg and sperm donors, and both have waived any parental interest in the child. The parties entered into a valid and enforceable surrogacy agreement setting forth the parties’ rights and responsibilities with regard to the child. In setting forth those rights and responsibilities, the parties clearly expressed their intentions regarding parentage of the child….

In the surrogacy agreement, appellant agreed to relinquish physical custody of any and all rights to the child. She further agreed that the child to whom she gave birth would be appellee’s [Intended Mother’s] child. She also agreed to sign any documents or participate in any legal proceedings required to ensure that appellee [Intended Mother] is legally determined to be the mother of the child, including voluntarily cooperating in the lawful and prompt termination of parental rights to the child and any legal proceedings required for appellee [Intended Mother] to legally become the mother of the child. The language employed by the parties in the surrogacy agreement clearly and unambiguously manifests their intention that appellant [Surrogate] relinquish all parental rights to the child and that appellee [Intended Mother] be the child’s legal mother….

For the foregoing reasons, we hold that the trial court did not err as a matter of law in analyzing the child’s parentage under R.C. Chapter 3111 and, in doing so, concluding that appellee [Intended Mother] had successfully rebutted appellant’s presumptive parentage.

This is a significant victory on several levels. First and foremost, the Intended Mother has legal custody of her baby after having to endure a terribly traumatic experience, including the death of one of her twins. Secondly, we have an Appellate Court decision out of Ohio finding gestational carrier agreements, even with donor sperm and eggs, to be valid and enforceable in the State of Ohio. Lastly, we have a very concise and unequivocal determination by an Ohio court that birth does not trump intent when it comes to establishing maternity in a surrogacy case.

Parenthetically, I should point out that these types of custody disputes are very rare. With more than 38,000 surrogate deliveries in the United States since 1979, there have only been 32 reported instances of surrogates attempting to keep custody of the child (the majority of those involving traditional surrogacy). In fact, the greatest risk in a surrogate arrangement is not that the surrogate will repudiate the agreement and attempt to keep custody, but rather that the Intended Parent(s) will abandon their child(ren) and the surrogate during pregnancy. Over the same 31 year period of time, 74 Intended Parents have sought to walk away from their pregnant surrogate! Quite an astonishing statistic and one that strains credulity. Over the years, I have had the good fortune to work on more than 8,000 reproductive arrangements. In none of these cases has a surrogate or donor sought to change their mind. Never have any of my Intended Parents had to commence an action against their surrogate or donor or ever were sued by them. However, I have had four clients seek to walk away from their pregnant surrogate. So when reading a case like this one out of Ohio, please keep in mind that these types of disputes are exceedingly rare. Surround yourself with reputable professionals including independent attorneys and licensed mental health professionals and you can substantially mitigate the risk of being involved in a situation like the one described above.

By the way, no word yet on whether the Surrogate in this case intends to appeal. We will be sure to update this Blog should we learn of any further developments.