J.F. v. D.B. , 116 Ohio St. 3d 363 ( 2007 )

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 bar are of significant public interest. Access to the courts can promote informed public discussion on these matters.” Id. at 26, 556 N.E.2d 439. These statements are indicative of a lack of a declared public policy for or against surrogacy contracts. Furthermore, as far as we can tell, neither the General Assembly nor any other governmental body in Ohio has ever enunciated a public policy concerning gestational surrogates. See R.C. 3111.89, describing the scope of artificial-insemination provisions, which frankly states, “These sections do not deal * * * with surrogate motherhood.” See also Loc.R. 75.1(C)(6) of the Court of Common Pleas of Hamilton County, Probate Division (“All surrogacy adoptions shall be treated as non-relative adoptions”) and Loc.R. 83.1(H) of the Court of Common Pleas of Montgomery County, Probate Division (“All surrogate adoptions shall be treated as non-relative adoptions unless the surrogate mother is a relative of the adopting parent or parents”).

{¶ 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., R.C. 5103.17, which prohibits anyone from offering “inducements to parents to part with their offspring,” and R.C. 3107.08, 3107.081, 3107.084, and 3107.10, all of which relate to adoption. See also Doe v. Atty. Gen. (1992), 194 Mich.App. 432, 487 N.W.2d 484; In re Baby M. (1988), 109 N.J. 396, 537 A.2d 1227; Belsito v. Clark (1994), 67 Ohio Misc.2d 54, 644 N.E.2d 760.

{¶ 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.

{¶ 7} Though it is not relevant to this case, we would be remiss to leave unstated the obvious fact that a gestational surrogate, whose pregnancy does not involve her own egg, may have a different legal position from a traditional surrogate, whose pregnancy does involve her own egg. This case does not involve, and we draw no conclusions about, traditional surrogates and Ohio’s public policy concerning them.

{¶ 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.