The Tennessee Supreme Court has upheld a portion of a contract in which a Tennessee woman agreed to act as a surrogate mother for an Italian couple who were unable to have children on their own.

The Italian couple, referred to as the “intended parents,” contacted the surrogate through a surrogacy agency. In July 2010, the surrogate, her husband, and the intended parents signed a contract for a “traditional surrogacy.” In the contract, the surrogate and her husband agreed to give the child to the intended parents after birth.

By way of artificial insemination by the intended father, the surrogate became pregnant in April 2011. Over the course of the pregnancy, the intended parents paid medical expenses, legal fees, and other costs totaling approximately $70,000. Two months prior to the birth of the child, the 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.

The juvenile court granted the petition. On January 7, 2012, the surrogate gave birth to a girl. Following the advice of medical personnel, the parties agreed that the surrogate should breastfeed the child for a short period of time. When the child was almost one week old, the surrogate changed her mind about giving the baby to the intended parents and asked the juvenile court to award her custody. The juvenile court denied her request and gave custody to the intended parents. The Court of Appeals affirmed the ruling.

On further appeal, the Supreme Court observed that the General Assembly has recognized the concept of traditional surrogacy by statute and that state law does not prohibit traditional surrogacy contracts. The Court found, however, that another statute prohibits the termination of the parental rights of the surrogate mother prior to birth. Because the juvenile court did not have a lawful basis for terminating the surrogate mother’s parental rights before the birth of the child, the Court remanded the dispute to the juvenile court to determine the issues of visitation and child support, but upheld the award of custody to the father. The child has now been in the custody of the father for over two years.

Justice William C. Koch, Jr., wrote a separate concurring opinion in which he asserted that the Court should not address the question of whether surrogacy contracts violate state public policy.

To read the In re Baby et al. opinion, authored by Chief Justice Gary R. Wade, and the separate concurring opinion by Justice Koch, visit the Opinions section of TNCourts.gov.