In Re Baby was a surrogacy case decided by the Tennessee Supreme Court in 2013.  The case reviews several important statutes relevant to adoption and surrogacy law.  In Re Baby upheld the validity of traditional surrogacy contracts in Tennessee.  The court found that such contracts are not against Tennessee public policy, but that they are subject to the confines of applicable statutes, particularly for terminating the parental rights of the biological mother.

Here are some definitions to keep in mind:

  • Assisted Reproductive Technology (ART): fertility treatmentsused to achieve pregnancy in procedures such as fertility medication, in vitro fertilization and surrogacy.
  • Intended Parent (IP): an individual who manifests the intent to be legally bound as the parent of a child resulting from assisted or collaborative reproduction. (ABA Model Act Governing ART).
  • Traditional Surrogacy: the surrogate undergoes artificial insemination or IVF with sperm from the male (often the intended father) or from a sperm donor. The surrogate provides the eggs and is therefore genetically related to the child.
  • Gestational Carrier (GC): the surrogate carries a child derived from the genetic material of one or both intended parents through IVF. Often the sperm is the genetic material of the intended father and the eggs are the genetic material of a donor.  The Gestational Carrier has no genetic relationship to the child.

In Re Baby involved a couple in Italy who were unable to conceive and entered into a surrogacy contract with a woman in Tennessee.  This was a traditional surrogacy, so the embryo consisted of the genetic material of the surrogate and the intended father.

After the child was born, the surrogate changed her mind and sought custody of the baby.  She asked the court to reverse its previous determination, which had been ordered with the agreement of the parties during her pregnancy.  She wanted the court to reverse its decisionrecognizing the intended parents as custodians and terminating the surrogate’s parental rights, if any.

The court analyzed several statutes prior to ruling that while traditional surrogacy agreements are permissible, the parties cannot contract away laws designed to protect the rights of biological parents.  The court noted, “[A] parent may not avoid judicial oversight of the termination of parental rights by the terms of a contract.  Hence, a traditional surrogate, as the biological mother of the child, is a legal parent until her parental rights are terminated through one of our statutory procedures.  In a traditional surrogacy, an intended mother—who, by definition, is not genetically related to the child—may only attain the status of a legal parent through adoption.”

While a contract relinquishing the legal rights and responsibilities for a donated embryo is authorized under Tennessee law, a traditional surrogacy does not involve a donated embryo, and was therefore unavailable in this case.  The legal process for terminating the mother’s parental rights in a traditional surrogacy is the same as that for any biological parent.

Lastly, the court held that “the terms of a surrogacy contract pertaining to compensation will only be enforceable to the extent that they are not contingent upon the surrogate’s surrender of the child or the termination of her parental rights, and to the extent that they reflect the reasonable costs of services, expenses, or injuries related to the pregnancy, the birth of the child, or other matters inherent to the surrogacy process.”

The Adoption Law Center of Middle Tennessee, PLLC generally recommends against traditional surrogacy agreements and cautions prospective intended parents of the significant legal and emotional risk inherent in traditional surrogacy.

We would love to be part of your surrogacy journey!  The Adoption Law Center of Middle Tennessee, PLLC represents both gestational carriers and intended parents, in addition to adoptive parents.

Call us today at (615) 543-8640

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