J.F. v. D.B., 2007
From Judgepedia
J.F. v. D.B. is a 4-3 decision of the Ohio Supreme Court. The decision upheld a contract to pay a woman $20,000 to serve as a surrogate mother.
The majority opinion was written by Paul Pfeifer. Justices O'Donnell, Lanzinger, and Cupp vigorously dissented.
The majority said that a contract to pay a woman $20,000 to serve as a surrogate mother was not unconscionable or otherwise "void by public policy" and was therefore enforceable. The majority wrote that "a lack of a declared public policy for or against surrogacy contracts," and reasoned in a manner greatly deferential to the freedom of adults to enter into contracts, observing that "a written contract defining 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."
Underlying history
D.B. is a woman who was paid $20,000 to be artificially inseminated. The fertilized eggs with which she was inseminated came from a donor, who was not a party to this lawsuit. The sperm donor was J.F.. D.B. ultimately gave birth to triplets, who live with J.F., their biological father.
J.F., D.B., D.B.'s husband and the egg donor had all agreed to a "gestational-surrogacy' contract; this contract forbade D.B. from attempting "to form a child-parent relationship with any child conceived pursuant to the contract." J.F. paid $20,000 to D.B. as part of this contract.
Afterward, a custody battle ensued.
- The trail court voided the surrogacy contract, saying it violated Ohio's public policy and was therefore unenforceable.
- The Ohio District Courts of Appeal reversed that decision of the trial court, saying there is nothing in Ohio's laws or public policy to forbid enterining into an enforceable contract about surrogacy.
Cupp's dissent
In his dissent, Justice Cupp registered his belief that the contract, irrespective of whether it was voluntary, was "contrary to public policy and void." He also made the followiong remarks on the matter:
- "[T]he issue presented encompasses a socpe broader than simply whether any Ohio statute specifically and expressly bans gestational surrogacy. The real issue is whether the essential nature of the contract ... runs contrary to the established public policy of this state..."
- "Public policy is difficult to define with accuracy [but] is the cornerstone-the foundation- of all Constitutions, statutes, and judicial decisions."
- "I conclude that the contract is contrary to public policies safeguarding children."
- "[I]t is impossible to so precisely separate the conduct of the parties and the object of the payment of money."
- "For [the plaintiff's] argument to be valid, it would be necessary to legally declare that the children do not have a mother. Such a position is untenable."
- "[Although] there is no evidence of improper motive or illicit purpose by any of the parties involved in this matter[,] It is equally clear that each of the parties fo the purported contract is acting out of self-interest * * *. 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."
- "Enforcing this contract, which is no less than the creation of a child, is likely to open Ohio to being an interstate, and perhaps international, marketplace for gestational surrogacy. * * * Without comprehensive rules of engagement for such activity, preferably prescribed by the legislature, it is not difficult to imagine a developing "marketplace" for multipart, multistate child production contracts."
- "[T]his court should not be an unwitting instrument to opening the door of this state to such an unregulated commercial enterprise."
- "A public policy much more important than money is involved here: the conception and nurturing of children is not just another commercial transaction."
