J.F., APPELLEE, v. D.B. ET AL., APPELLANTS.
No. 2006-0843
SUPREME COURT OF OHIO
December 20, 2007
[Cite as J.F. v. D.B., 116 Ohio St.3d 363, 2007-Ohio-6750.]
PFEIFER, J.
Child custody — Breach of surrogacy contracts — Public policy. Submitted April 17, 2007. APPEAL from the Court of Appeals for Summit County, No. 22709, 165 Ohio App.3d 791, 2006-Ohio-1175.
PFEIFER, J.
{¶ 1} The procedural history of this case includes several court decisions in two states, but the relevant facts can be easily summarized. Eggs from a nonparty donor were artificially inseminated with semen from appellee, J.F., and implanted in appellant D.B., who subsequently gave birth to triplets. The triplets live with their biological father. Prior to these events, J.F., D.B., D.B.‘s husband, also an appellant, and the egg donor had executed a gestational-surrogacy contract. The agreement provides that D.B. will “not attempt to form a parent-child relationship with any child conceived pursuant to the contract” and will “institute proceedings” to “terminate [her] parental rights” upon the birth of the children. In return, J.F. agreed to pay D.B. $20,000 and expenses.
{¶ 2} A custody dispute followed the birth of the triplets. In Ohio, J.F. sued D.B. for breach of contract, and both sides moved for summary judgment. In granting summary judgment for D.B. and her husband, the trial court concluded that the provisions of the surrogacy contract that require D.B. to relinquish parental rights and allow J.F. to recoup child-support payments from D.B. if she is awarded custody violate Ohio‘s public policy and cannot be enforced. The court of appeals reversed, concluding that nothing in the laws of Ohio prohibits gestational-surrogacy contracts or enforcing the terms of the contract against D.B. and her husband. We accepted D.B.‘s discretionary appeal.
{¶ 3} The sole issue before us is whether the contract entered into by appellants and J.F., in which D.B. agreed to be a gestational surrogate, is contrary to the public policy of Ohio.
{¶ 4} This court has had little occasion to discuss surrogacy contracts. In In re T.R. (1990), 52 Ohio St.3d 6, 556 N.E.2d 439, we considered factors in favor of and against a public trial in a case involving a surrogacy contract. One of the factors in favor of a public trial was the opportunity “to study the potential pitfalls of surrogacy contracts.” Id. at 20, 556 N.E.2d 439. We also stated that the “problems associated with surrogate parenting and the custody and dependency actions which may accompany agreements such as the one in the case at
{¶ 5} A written contract defining the rights and obligations of the parties seems an appropriate way to enter into surrogacy agreement. If the parties understand their contract rights, requiring them to honor the contract they entered into is manifestly right and just. Even so, the “[l]iberty of contract is not an absolute and unlimited right, but upon the contrary is always subservient to the public welfare.” Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Kinney (1916), 95 Ohio St. 64, 115 N.E. 505, paragraph one of the syllabus. Furthermore, “[t]he public welfare is safeguarded, not only by Constitutions, statutes, and judicial decisions, but by sound and substantial public policies underlying all of them.” Id. at paragraph two of the syllabus. D.B. cites many statutes and cases to support her position that the public policy of Ohio is undermined by the contract that she and J.F. entered into and, therefore, that that contract is unenforceable. See, e.g.,
{¶ 6} Neither these citations nor the many others included in D.B.‘s brief and argument convince us that Ohio has a public policy concerning gestational surrogacy. We conclude, therefore, that Ohio does not have an articulated public policy against gestational-surrogacy contracts. Consequently, no public policy is violated when a gestational-surrogacy contract is entered into, even when one of the provisions requires the gestational surrogate not to assert parental rights regarding children she bears that are of another woman‘s artificially inseminated egg. We affirm the judgment of the court of appeals on this issue.
{¶ 8} The court of appeals also found that “Mr. and Mrs. [B.] breached the contract,” and it assessed some damages and remanded the case for a determination of attorney fees and other expenses. Although the record appears to provide support for the court of appeals’ finding, neither we nor the court of appeals should determine breach and damages, because those issues were not briefed at the court of appeals. See Ins. Co. of N. Am. v. Automatic Sprinkler Corp. of Am. (1981), 67 Ohio St.2d 91, 98, 21 O.O.3d 58, 423 N.E.2d 151. We therefore reverse the court of appeals’ finding of breach of contract and assessment of damages. Accordingly, we affirm in part and reverse in part the judgment and remand the cause to the trial court to determine whether a breach of the agreement occurred and, if so, to determine damages.
Judgment affirmed in part and reversed in part, and cause remanded.
MOYER, C.J., and LUNDBERG STRATTON and O‘CONNOR, JJ., concur.
O‘DONNELL, LANZINGER, and CUPP, JJ., dissent.
CUPP, J., dissenting.
{¶ 9} I must respectfully dissent. I believe that the surrogacy contract entered into by the parties in this case is, as a whole, contrary to public policy and void. Consequently, its provisions, including the provisions regarding attorney fees and the surrogate‘s “services” fee, are unenforceable.
{¶ 10} In the majority‘s view, the contract is valid because Ohio does not expressly prohibit the practice of gestational surrogacy. But the issue presented encompasses a scope broader than simply whether any Ohio statute specifically and expressly bans gestational surrogacy. The real issue is whether the essential nature of the contract, drawn from the import of its provisions, runs contrary to the established public policy of this state and, thereby, renders the contract unenforceable.
{¶ 11} It has long been an established principle of law that the freedom of contract is not unlimited and that parties may not enter into a contract that is in violation of established law or public policy. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Cox (1896), 55 Ohio St. 497, 515, 45 N.E. 641; Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Kinney (1916), 95 Ohio St. 64, 68, 115 N.E. 505; Gugle v. Loeser (1944), 143 Ohio St. 362, 367, 28 O.O. 318, 55 N.E.2d 580, citing Twin City Pipe Line Co. v. Harding Glass Co. (1931), 283 U.S. 353, 356, 51 S.Ct. 476, 75 L.Ed. 1112. See also 17 Ohio Jurisprudence 3d (2001) 428, Section 79; Restatement of the Law 2d, Contracts (1981) 15, Section 179. Further, while we have noted that public policy is difficult to define with accuracy, Kinney at 67, 115 N.E. 505, we have acknowledged that it is the cornerstone — the foundation — of all Constitutions, statutes, and judicial decisions. Id. at 69, 115 N.E. 505. Thus, such policy must necessarily govern the proper resolution of this case.
{¶ 12} In reviewing the various public policies attendant to the present case, I conclude that the contract is contrary to public policies safeguarding children. The well-established policy of this state is that on matters of child custody and parental rights, the child is entitled to the protection of judicial oversight. This policy is manifested in numerous statutes and court rules.1 One specifically applicable to this case is
from offering “inducements to parents to part with their offspring.” The policy is further evidenced by
{¶ 13} The essence of this purported contract is an agreement among unrelated persons for the creation of a child for the payment of money.2 The contract document requires the surrogate mother and the egg donor3 to terminate any parental rights they may have to the resulting child, and should they fail to do so, they must return the money paid to them by J.F. to produce the child. Although the contract refers to the payment of money by J.F. to the egg donor and to the surrogate mother for their “services,” and not for their consent to adoption of the
{¶ 14} J.F. argues that this provision of the contract is a nullity because the surrogate mother did not contribute any genetic materials to the children and, therefore, would not have any parental rights to assert. However, whether the surrogate mother would be considered a parent under Ohio law is not, in my view, a settled legal issue. See, e.g.,
regard to be valid, it would be necessary to legally declare that the children do not have a mother. Such a position is untenable.
{¶ 15} It is also the established public policy of this state that a parent must provide for his or her child financially.
{¶ 16} To be clear, there is no evidence of improper motive or illicit purpose by any of the parties involved in this matter. It is equally clear, however, that each of the parties to the purported contract is acting out of self-interest, whether for genetic perpetuation or for financial gain. J.F.‘s desire to have children of his own origin is clear. The egg donor in this case was paid $2,500 for her role, and the surrogate mother and her husband were paid $20,000 for their contributions. The effect of the majority‘s holding would permit parties to such a pact to override and to write out the state‘s traditional oversight role. This oversight role has developed over a long time in response to the experience of society, and it exists to ensure the protection and welfare of children, including children born in consequence of gestational surrogacy arrangements.
{¶ 17} Enforcing this contract, which is no less than a contract for the creation of a child, is likely to open Ohio to being an interstate, and perhaps international,
{¶ 18} In light of the state‘s general framework of child-protection laws and careful judicial oversight over such matters, this court should not be an unwitting instrument to opening the door of this state to such unregulated commercial enterprise.
Conclusion
{¶ 19} I wish to be clear that I do not question the sincerity of J.F.‘s desire to have children. The desire to have and to raise children is born of a basic and noble human desire and instinct. While on one hand, as appellee asserts, this case is about recovering the money expended in the arrangement and the attorney fees incurred in its enforcement, on the other hand, this case is not simply about the money. A public policy much more important than money is involved here: the conception and nurturing of children is not just another commercial transaction.
{¶ 20} I would reverse the judgment of the court of appeals.
O‘DONNELL and LANZINGER, JJ., concur in the foregoing opinion.
Richard E.
Hanna, Campbell & Powell, L.L.P., Douglas N. Godshall, and R. Brian Borla; and McCarthy, Martone & Peasley and Joseph P. Martone, for appellants.