There’s been a lot of discussion of surrogacy in the comments here recently and I’ve been meaning to pull the topic back into a main post (because I think this makes it more accessible to readers.) And now I have a vehicle–albeit an imperfect one–to do this: A recent opinion by the Tennessee Court of Appeals. The case is called In re Baby, which is among the more curious captions I’ve seen (Does it sound like a pop song?), but it bears some thought.
Luca G and Antonella T (an Italian couple, unmarried at the beginning of this saga) entered into a surrogacy agreement with a woman in Tennessee, Jennifer E, and her husband, Joshua M. Pursuant to the agreement, Jennifer became pregnant via artificial insemination with Luca’s sperm. Since this means that Jennifer was genetically related to the child it makes her a “traditional” rather than a “gestational” surrogate. In November 2011, before the baby was born, the four people involved here filed a joint petition to establish parentage of the child. The idea here was to have legal parentage all sorted out before the child was born. In response to the petition the court issued an order in December 2011–still before the birth of the child.
The order provided that Luca (the intended and genetic father) was to be the legal father of the child. That isn’t really surprising to me, although it does stand in contrast to the ordinary marital presumption. (If a wife–here Jennifer–gives birth to a child her husband–Joshua–is presumed to be the parent.) If no one wants to invoke the presumption and if Luca can demonstrate genetic connection, most states would recognize him as a legal father, I think
The order also declared that any rights Jennifer and Joshua might “theoretically claim” were forever terminated. The court directed that at birth Luca would be listed as the father on the birth certificate and while the surrogate was to be listed as mother, but made clear that this was only for record-keeping purposes and therefore was not, I take it, to be seen as a declaration of the surrogate’s legal status. Finally, the intended parents (that’s Luca and Antonella) would have full legal and physical custody of the child upon the birth of the child.
The child was born on January 7, 2012, and it was agreed by the parties that Jennifer should nurse the child for a few days. It’s not clear to me whether this is a critical juncture but on January 13, Jennifer filed a motion seeking to prevent Luca and Antonella from travelling to Italy with the child. Eventually Jennifer directly challenged the December court order, asserting there could be no surrogate birth under Tennessee law because Luca and Antonella weren’t married.
In the initial court proceedings Jennifer lost. She had received $30,000 as part of the surrogacy arrangement, had joined in petitioning for a court order in December, and simply was not permitted to change her mind after the birth of the child. In the opinion I’ve linked to, the Court of Appeals affirms this decision.
I’d make a couple of points at the outset. The idea that the legitimacy of the agreement turns on whether Luca and Antonella are married seems to miss the point, from my perspective. There is lots that can be controversial about surrogacy but the main issues I see do not turn on the marital status of the intended parents. (Jennifer probably made this argument because she is, of course, constrained by Tennessee law.) I’m going to set this issue aside.
The arrangement at issue here certainly seems to be a surrogate birth under Tennessee law. Initially it appears that Tennessee is one of those states that does not distinguish between gestational surrogacy and traditional surrogacy. But if you look at the discussion of TN law on pages 5 and 6 you’ll see that TN law is actually more murky than that. As is often the case, the legislature didn’t exactly decide the critical issues here.
This case has made me think about gestational vs. traditional surrogacy. I’ve said before that I am inclined not to distinguish between them in law. (This is consistent with my desire to de-emphasize the importance of the genetic link.) And I’ve certainly read my share of surrogacy opinions. But there is something about this one I find surprising.
I am trying to recall if I’ve ever seen a case where traditional surrogacy has been upheld over the objection of the surrogate. Of course, the most famous traditional surrogacy case is Baby M, and in that case the surrogate was found to be a legal parent. Most of the other opinions that come to mind involve gestational surrogates and in many instances they are found not to have parental rights. Is there a case where a traditional surrogate is found to have no legal parental rights?
The discussion of Jennifer’s possible rights here is a little obscure. The court seems to agree that she had parental rights but finds they were terminated properly because of the surrogacy agreement. It looks to me like her rights (if she had any) were terminated in that December court hearing. But the rights then were only referred to as “theoretical.” And I really wonder about whether Jennifer (under TN law) had parental rights. If she did and if they were terminated pre-birth, then could you do the same in adoptions? Or does she have some diminished set of rights by virtue of the surrogacy arrangement?
I wonder whether the Tennessee Supreme Court will take the case and figure this out?