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Tennessee Supreme Court Rules Surrogacy Contracts May Be Enforced If in Compliance with State Laws

Supreme Court Rules Surrogacy Contracts May Be Enforced If In Compliance With State Laws

This article, published Thursday, September 18, 2014 details the story of a Tennessee surrogate who tries to get custody of the Intended Parents’ baby and the ruling from the courts.

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.


One comment for “Tennessee Supreme Court Rules Surrogacy Contracts May Be Enforced If in Compliance with State Laws”

  • Elaine

    Everyone should have a right to have a child. The surrogacy industry must have organized in a proper way. Surrogate mothers should suffer or feel any inconveniences. And of course they must have medical control and special medical indications that let a woman to be a surrogate mother. When I suffered infertility the unique option for me was surrogacy. I did surrogacy in Ukraine, and I did not regret at all. We had a wonderful surrogate mother. Our surrogate mother was under medical control and lived in good conditions. She also signed a contract with us and was aware about everything. I am sure it is better not to take a risk and do surrogacy in Ukraine or maybe other country but not in Thailand or India, where surrogate mothers live in horrible conditions. I cannot imagine how people could go in India or Thailand to have a children. How could they trust future child to a dirty Indian woman with numerous diseases. I know that people went there because of low prices. But rich people… I think there are enough variants even for low price. Surrogacy was the only chance for us to become happy parents. We studied all the information about the countries where such program is conducted, pricing and so on. As a result, we decided in favor of Georgia, it met us with a great comfort, beauty and hospitality. In the New Life clinic we found none defects. There we found high level of medical treatment, European service, and attentiveness of staff to patients, good doctors. Everything was perfect but there was no result… In a word, being disappointed in three clinics, we realized that we just cannot financially be able to buy more than one attempt. And we found Ukrainian BioTexCom Centre. The price pleasantly surprised us – we paid 30 thousand euros for the surrogacy program. But, it is important to note, this price included accommodation, meals, transfers, meeting at the airport and all medical procedures. And not a penny more! We were amazed that after the first attempt our surrogate mother got pregnant! She’s a nice woman who carefully and responsibly applied to the baby she carried for us. In addition, after delivery, clinic’s manager set a question with documents at rest. That is to say, everything was done completely legally and without nerves, negative emotions and bribes. We left Ukraine at the end of the program with no problems and did all the paperwork for the child easily. Today we are happy parents!

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