As more and more infertile couples avail themselves of the surrogacy option in family building, the courts are increasingly confronted with new areas in which they must deliberate. The laws "presently on the books" are generally insufficient to resolve these new quandaries, and the courts must apply innovative approaches to arrive at appropriate solutions.

Furthermore, when a state passes legislation specific to surrogacy, the courts must review these new laws to denote whether they pass muster. In the case of Soos v. Superior Ct. County of Maricopa, 897 P.2d 1356 (Ariz. App. Div. 1 1994) the Arizona Court of Appeals struck down as unconstitutional an Arizona statute designed to limit surrogacy options.

The case encapsulations which follow are not meant to be comprehensive, nor are they necessarily applicable in any particular situation, especially if similar controversies arise in different states.

However, the approaches taken by the courts are instructive and may be persuasive to other courts facing these formerly novel situations.

This case involve the rights of different parties to the frozen semen of a deceased individual. The issue was whether Barry S. Hall had effectively donated his frozen semen to Christine C. St. John, prior to his death. Contesting the claimed donation was the estate of Barry S. Hall. The court ruled, on an interim basis, that the status quo should be maintained pending a final resolution of the issue "without the possible complication and distraction of the existence of human embryos or more developed offspring."

Facts of the Case

Barry S. Hall died on October 29, 1993 of metastatic cancer, and was survived by his sole son.

While there is some dispute as to the facts, Christine C. St. John claimed that when Hall was alive, and upon his becoming aware of his condition, Hall and St. John consulted with a staff physician of the Fertility Institute of New Orleans in order to discuss the effects of contemplated chemotherapy on Hall's ability to father children and also to preserve sperm deposits.

Fifteen vials of sperm were donated and deposited with the Fertility Institute, yet preparations for beginning an insemination cycle were delayed for a period of time by St. John. St. John was billed for and paid the Institute's 1992 semen storage fee.

On November 29, 1992 Hall and St. John executed an Act of Donation before St. John's law partner, by which Hall attempted to convey his interest in his frozen semen deposits to St. John for "love and affection." On October 25, 1993 Hall signed a living will, again before St. John's law partner, appointing St. John as his health care agent and appointing his mother as successor health care agent. Hall's sister witnessed the living will and declared her belief that Hall was of sound mind at the time the living will was signed.

Other evidence in the case included affidavits from five participants in a cancer support group in which Hall participated prior to his death, who reported that Hall stated he could not marry St. John because of his illness, but had deposited sperm in order that she could have the option to bear a child by him. Testimony from the notary who witnessed his will in September 1993, along with that of St. John's law partner, and the observations of Hall's primary care physician, all reflect that he was mentally capable of making rational decisions.

This is countered by Hall's mother, as the executrix under his will, who sought a declaratory judgment, and requested that Hall's frozen semen on deposit with the Fertility Institute was estate property, or alternatively, that it be destroyed.

Other countervailing evidence included the affidavit of Hall's only child, who declared that he wished his father's remains (including the semen deposits) to be buried; that if his father had wished to have children with St. John he would have married her, and impregnated her before undergoing treatment, or allowed her to be artificially inseminated while he was alive. His affidavit also declared his extreme emotional upset, embarrassment and anger that he would suffer at the prospect of the creation of half-siblings after his father's death.

Hall's sister filed an affidavit, claiming that "toward the end" Hall was not responsible for his actions as he was under heavy sedation and at all times under St. John's dominant influence. The affidavit further stated that her mother and sister were Hall's primary caretakers during the two years of illness and that St. John had disclaimed all responsibility for Hall. She further stated that Hall told her the semen deposit was intended for use when he finished treatment and was cured, and that if Hall had wished to marry and have a family with St. John he would have done so. The affidavit of her sister and their mother bolstered this position.

The trial court granted the preliminary injunction in order to maintain the status quo until the issue of Hall's competency and intention could be determined in a full trial on the merits.

Appellate Ruling

The Court of Appeals applied the standard for the issuance of injunctions, in relying upon La. C.C.P. art. 3601, which requires the issuance of an injunction where irreparable injury, loss, or damage may otherwise result. In order to prevail at a hearing for preliminary injunction, the applicant must show the likelihood of irreparable injury, entitlement to relief sought, and the likelihood of prevailing on the merits of the case.

The court found no merit in Hall's mother's claim that the sperm donation should be set aside for reasons of public policy. The court concluded that the sole relevant issue to be determined upon trial of the case was whether Hall was competent and not under undue influence at the time the attempted donation occurred. If so, St. John would have full rights to the disposition of the frozen semen.

The Court of Appeals upheld the trial court's granting of a preliminary injunction, as the potential consequences of failing to grant the injunction would constitute irreparable harm. If St. John obtained Hall's sperm during the pendency of the action, one or more embryos could well come into existence. The length of time required to resolve the matter could well result in the possible development of human beings. The emotional damage to Hall's mother, should the donation prove to have been illegally obtained, as well as the existence of a child sired against the wishes of her dead son, was obvious to the court.

A trial on the merits is required, where the conflict in testimony must be resolved. Among the factors going to Hall's donative intent (or lack of it) are:

1. Evidence that Hall deposited his sperm prior to undergoing chemotherapy, the effects of which could damage the sperm and render the prospect of healthy children less likely.
2. Hall left nothing to St. John under his will, which cuts against the necessity of support upon the birth of children from the donated sperm.
3. St. John advised the infertility physician that plans for impregnation were no longer immediate, and neither Hall nor St. John further contacted the infertility physician.
4. St. John and Hall apparently chose not to begin the insemination process prior to his death; initiating the process prior to his death may well have alleviated many of the questions facing the court.
5. The act of donation was procured through St. John's law partner, rather than through a disinterested attorney. This raises a factual issue as to whether Hall's donation was of his own free will.

The case was remanded to the trial court for a determination of these issues.

This case declared unconstitutional the Arizona surrogacy statute which conclusively presumed that a gestational surrogate is the legal mother of the child to be born and is entitled to custody of that child.

The Appellate Court found that the statute offended the Equal Protection Clause of both the United States and Arizona Constitutions, in that the biological father of a child born through gestational surrogacy could petition a court to be declared the father of the child; however, the biological mother of the child was precluded from doing likewise as the surrogate was deemed to be the legal mother under the statute.

Facts of the Case

Ronald A. Soos ("the Father") and his wife at the time, Pamela J. Soos ("the Mother"), entered into an agreement with Debra Ballas ("the Surrogate"), by which the Surrogate would bear the genetic child of Father and Mother through gestational surrogacy. Eggs were donated by Mother and fertilized in vitro with sperm donated by Father, and fertilized eggs were implanted in the Surrogate. The Surrogate became pregnant with triplets.

During the Surrogate's pregnancy, the Mother filed a petition for dissolution of the marriage and requested shared custody of the unborn triplets. The Father asserted that he was the biological Father of the unborn triplets, and that pursuant to A.R.S. §25-218, the Surrogate was the legal mother of the triplets. The Father also alleged that, since the Surrogate was the legal mother of the triplets under the statute, the Mother had no standing to request custody.

In September 1993, the Surrogate gave birth to triplets. The Father and the Surrogate filed a request for order of paternity with the Maricopa County Superior Court. The court entered an order naming the Father as natural father of the triplets and Father assumed custody of the triplets.

The Mother sought emergency relief, including visitation. She attacked the constitutionality of A.R.S. §25-218(B), the effect of which was to declare the Surrogate to be the legal mother.

The trial court ruled that there was not a compelling state interest that justified terminating the substantive due process rights of the genetic mother in such a summary fashion.

The court concluded that the current law could leave the child without any mother, as the gestational mother (surrogate) might have no desire to do anything more than what she was hired to do, which was to carry and give birth to the child. The statute did not consider the important rule which genetics play in the determination of who a child is and becomes; furthermore, the current law does not consider what is in the best interest of the child.

The trial court concluded A.R.S. §25-218(B) is unconstitutional.

The court ordered that the Mother would have visitation rights with the triplets and that the triplets would remain in the temporary custody of the Father. The Father sought special action jurisdiction under Arizona law before the Court of Appeals of Arizona, and the court concluded that there were two reasons for special action jurisdiction: that the Father had no equally plain, speedy, or adequate remedy by appeal; and that the constitutionality of the surrogate statute is an issue of first impression and a matter of statewide importance.

Appellate Ruling

Father raised three issues on appeal:

1. Did the trial court err as a matter of law in holding A.R.S. §25-218(B) unconstitutional?
2. Did the trial court exceed her jurisdiction and legal authority, making an arbitrary and capricious decision, and abuse her discretion in ordering an evidentiary hearing to determine who would be the better mother?
3. If A.R.S. §25-218 is constitutional, did the trial court exceed her jurisdiction and legal authority, making an arbitrary and capricious decision, and abuse her discretion in ordering visitation rights to the Mother?

The Mother responded to the Father's petition, and she alleged that A.R.S. §25-218(B) violated her due process, equal protection, and privacy rights guaranteed by the United States and Arizona Constitutions. The Surrogate filed a response to the petition, agreeing with the Father and his petition.

The Appellate Court agreed with the trial court and the Mother that A.R.S. §25-218(B) is unconstitutional because it violates the Mother's equal protection rights.

Again, A.R.S. §25-218 provides in relevant part:

1. No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.
2. A surrogate is the legal mother of a child born as a result of a surrogate parentage contract and is entitled to custody of that child.
3. If the mother of a child born as a result of a surrogate contract is married, her husband is presumed to be the legal father of the child. This presumption is rebuttable.

The statute was modeled on the Michigan statute and enacted for the purpose of prohibiting surrogate parentage contracts. The governmental interests asserted by the legislature in support of the statute were to stop "baby brokers" and to cease the trafficking of human beings.

The Appellate Court specifically limited its holding to dealing with a custody issue between the biological mother and biological father and the constitutional issues surrounding their competing interests. The court pointedly did not rule upon the case of a surrogate mother and a biological mother embroiled in a dispute of parentage and custody of a child which a surrogate mother might choose to keep. The limited issue before the court was the constitutional scrutiny of a statute which affords the biological father an opportunity to prove paternity and gain custody, but does not allow a biological mother a comparable opportunity.

The Appellate Court addressed the equal protection claim of Mother. The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution denies "to states the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute". Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971).

The Appellate Court concluded that the strict scrutiny test must apply to its analysis of the statute, in that the statute impinges on a fundamental right.

As the court justified,

"We are dealing with a statute that affects one of the basic civil rights. The due process clauses of the state and federal constitutions, together with the rights emanating from the guarantees of the Bill of Rights, protect 'individual decisions in matters of childbearing from unjustified intrusion by the State.' Carey v. Population Ser. Int'l, 431 U.S. 678, 687, 97 S.Ct. 2010, 2017, 52 L.Ed.2d 675 (1977); Stewart v. Maricopa County Superior Court, 163 Ariz. 227, 787 P.2d 126 (1989); Doe v. Attorney Gen., 194 Mich. App. 432, 487 N.W.2d 484, 486 (1992). 'Marriage and procreation are fundamental to the very existence and survival of the race.' Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). A parent's right to the custody and control of one's child is a fundamental interest guaranteed by the United States and Arizona Constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972); Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 161, 650 P.2d 459, 463 (1982). Therefore, although a gender-based distinction is at issue, the statute must be tested against a strict scrutiny analysis. That is the government can only 'justify the abridgment of such a fundamental right by demonstrating that a countervailing compelling state interest is thereby promoted and that the means are closely tailored to the end sought to be achieved.' Doe 487 N.W.2d at 486, citing Eisenstadt v. Baird, 405 U.S. 438, 463-64, 92 S.Ct. 1029, 1043, 31 L.Ed.2d 349 (1972) (White, J., concurring); see Bryant 156 Ariz. at 196, 751 P.2d at 512 (citation omitted) (the statute 'may be upheld only if there is a 'compelling state interest' to be served and the regulation is 'necessary' to achieve the legislative objective.')."

The applicable statute (A.R.S. §25-218(C)) permits a man to rebut the presumption of legal paternity by proving "fatherhood," but does not provide the same opportunity for a woman. The surrogate is conclusively deemed to be the legal mother of the child under A.R.S. §25-218(B), yet the woman who may be genetically related to the child has no opportunity to prove her maternity. As a consequence, she is denied the opportunity to develop the parent-child relationship. There is no procedure by which she can prove her maternity under the statute, which violates the precept of procedural due process.

The court concludes that the genetic Mother has parental interests no less deserving of protection than those of the Father. "By providing dissimilar treatment for men and women who are thus similarly situated, the statute violates the equal protection clause." Reed, 404 U.S. at 77, 92 S.Ct. at 254.

The Father rejoins by noting that mere biology is not sufficient to create a parental right as guaranteed by the state and federal constitutions. Father cites the premise that before a parent can claim a fundamental right, a developed parent-child relationship must exist. Lahr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). This underscores the proposition that, while the state may not unduly interfere with an unwed father's ability to develop a parent-child relationship, it need not protect the mere biological link if the father fails to step forward. Pima County Juvenile Severance Action No. S-114487, 179 Ariz. 86, 94, 876 P.2d 1121, 1129 (1994).

Yet this maxim does not hold true in the surrogacy context. The biological mother may only prove maternity through a genetic or biological link, yet the applicable statute conclusively does not recognize her as the "legal mother," and hence she has no opportunity to develop a parent-child relationship.

"The usual understanding of 'family' implies biological relationships, and most decisions creating the relationship between parent and child have stressed this element... The 'biological connection' is itself a relationship that creates a protected interest. Thus the 'nature' of the interest is the parent-child relationship; how well developed that relationship has become goes to its 'weight,' not its 'nature.' Lahr 463 U.S. at 272, 103 S.Ct. at 2999."

It is fundamentally unfair to afford the Father a procedure for proving paternity, yet denying the Mother the same opportunity. This violates equal protection of the laws. "A classification must be reasonable, not arbitrary, and must rest upon some ground or difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Reed, 404 U.S. at 76, 92 S.Ct. at 254. The state did not demonstrate a compelling interest so as to justify the disparate treatment, which would be required to uphold the statute under the strict scrutiny standard. Hence it is unconstitutional, under both the federal and Arizona Constitutions, for violating the fundamental liberty interest.

Relief was denied, and the trial court's action stands.

Judge Gerber concurred specially, noting that the state, in principle, could seek to regulate or even ban surrogacy. Legitimate interests of the state would be to prevent the "mercenary trafficking in babies, i.e., rent-a-womb services and the buying and selling of eggs." Furthermore, the state could seek to avoid the emotional disruption in the gestational mother likely to result from taking the child from her (e.g., Mary Beth Whitehead), "as well as the child's denigration as an object of profit." See W. Wagner, "The Ethical and Legal Implications of Hired Maternity," 35 American Journal of Jurisprudence 187 (1990).

Judge Gerber agrees with the decision of the majority, but cites different reasons. He notes the statute imposes the burden of motherhood on the Surrogate, who did not contract for this relationship and "almost certainly" does not wish it.

Judge Gerber stresses that the statute disregards the best interests of the child. First, the statute automatically confers custody to the surrogate, ignoring the likelihood that the surrogate has no interest in raising the child. Second, the statute vitiates the almost universal maxim of family law which requires the submission of evidence to an arbiter who is specifically guided by what is in the best interest of the child. He cites A.R.S. §25-332, including subsection E, which precludes consideration of gender of the parent in determining custody.

Finally, Judge Gerber emphasizes that the statute is overly broad, as it prohibits all forms of surrogacy "whether it is mercenary or not." "I cannot see any constitutional barrier to a properly-drafted statute which would permit surrogacy for limited altruistic motives other than profit, i.e., where a family member or friend agrees to serve as an unpaid gestational surrogate for the genetic mother."

The genetic parents of a child born through gestational surrogacy were declared to be the genetic, natural, and legal parents of the child born to their surrogate carrier. When staff members of the delivering hospital informed the genetic parents that, upon birth of the child he would be listed on his birth certificate as the illegitimate child of the surrogate carrier, the genetic parents petitioned the Court of Common Pleas to issue a declaratory judgment that (1) they were the natural and legal parents of the child, that (2) their status should be listed as such on the child's birth certificate, and that (3) no adoption of their genetic offspring was necessary.

The court agreed with the requests of the genetic parents.

Facts of the Case

Plaintiffs Anthony and Shelly Belsito hoped for a large family, but unfortunately one month prior to their marriage, Shelly had to undergo a hysterectomy. Her physician removed her uterus, but was able to save her ovaries so that she could continue to produce eggs.

Carol S. Clark is Shelly's younger sister, and agreed to carry Shelly and Tony's child through gestational surrogacy.

Shelly and Tony were accepted into the University Hospitals' program for in vitro fertilization, with Carol to serve as surrogate host. Carol was to receive no compensation, and testified that she planned to be no more than an aunt to the child.

Dr. Leon Sheean is director of the Laboratories for In vitro Fertilization and Andrology at the University Hospitals of Cleveland, McDonald Hospital for Women. Dr. Sheean testified as to the policies, procedures, and routine followed at McDonald Hospital in reference to in vitro fertilization. He particularly testified as to the procedures, methods of quality control, and the safeguards to assure that the fetus resulting from the donated egg and sperm of the genetic parents is placed in the proper surrogate, resulting in "100% certainty" that the child is the biological and genetic child of the infertile couple who donate the sperm and egg.

Checks and balances include color coding of all involved laboratory containers with a color which is unique to the patient.

The hospital's procedures require consent forms, which Carol Clark signed as "carrier", and Shelly and Tony signing respectively as "mother" and "father" of the child to be born.

The hospital's procedures include sexual abstinence from the surrogate, and Carol testified that she abstained from sexual intercourse for at least two months prior to the procedure and at least two weeks after the procedure.

On February 10, 1994, Shelly Belsito was admitted to McDonald Hospital for retrieval of eggs from her ovaries. Ten eggs were recovered from Shelly, and Tony's sperm was collected, washed and added to the eggs. On February 12, 1994 Carol Clark was admitted to McDonald Hospital for transfer of the embryos into her uterus, and two of the fertilized eggs were transferred into Carol's uterus by her attending physician. Two weeks after the transfer, tests revealed that one of the two embryos attached.

Dr. Sheean testified as an expert that the surrogate's uterus provides only means of nourishment and a means of carrying waste away from the baby's system. Dr. Sheean testified that there would be no genetic nor blood tie to the surrogate host. He further testified that the unborn child carried by Carol Clark was genetically the child of Anthony and Shelly Belsito and that Carol Clark as a surrogate would contribute none of the DNA that would ultimately make up the genetics of the unborn child.

The parties knew that the baby was a boy, and planned on naming him Nicholas Anthony Belsito. Carol was scheduled to undergo a cesarean section on October 12, 1994 at Akron City Hospital, and Shelly and Tony planned on being at Nicholas' birth.

In preparing for Nicholas' birth, Shelly was informed by the Akron City Hospital that, according to Ohio law, the woman who gave birth to the child would be listed on the child's birth certificate as the child's mother. Further, since Carol and Tony, the genetic and biological father, were not married, the child would be considered illegitimate and would be listed on his birth records as "baby boy Clark" and not as "baby boy Belsito."

As a result, Anthony and Shelly Belsito filed a complaint for declaratory judgment with the trial court on September 14, 1994, and hearing was held on September 27, 1994. The Belsitos requested the court declare that it is unnecessary for them to adopt the child carried by Carol Clark as they contend that they are the genetic and natural parents of the child and are therefore entitled to be recognized as having the legal status of parents. In addition, they requested the court order the preparer of the birth certificate to reflect the legitimate status of the child and the Belsitos' status as legal and natural parents of the child.

Opinion of the Court

The court ruled that Carol S. Clark was the gestational surrogate and the child she carried was unrelated to her by blood, being the genetic offspring of Shelly and Anthony Belsito.

The issue before the court was who would be designated as the legal and natural parents. Citing Ohio case law and the law of sister states, the court clarified that the law will impose the duties of a child-parent relationship and legal status of natural parents only upon those individuals who can be found to be natural or adoptive parents. As Anthony and Shelly Belsito alleged that they were the natural parents and not subject to the adoption laws of the state, the court's analysis was confined to the question of what constitutes or identifies a "natural parent."

Under Ohio case law (Owens v. Bell, 6 Ohio St. 3d 46, 48, 451 N.E.2d 241, 243 (1983) "Natural parent" refers to the child and parent being of the same blood or related by blood.

Black's Law Dictionary describes "blood relations" as: "kindred; consanguinity; family relationships; relation by descent from a common blood ancestor. A person may be said to be 'of the blood' of another who has any, however small a portion, of the blood derived from a common ancestor . . ." Black's Law Dictionary (6th Ed. Rev. 1990) 172.

The court analyzed the traditional means of identifying "blood relationships", including comparing common biological character-istics between the child and the alleged parent, such as facial features, build, and color of hair and eyes, to confirm a blood relationship. Domigan v. Gillette, 17 Ohio App. 3d 228, 479 N.E.2d 291,(1984). The court opined that a genetic relationship and a blood relationship of the appropriate degree still provide the primary means of establishing parentage.

However in cases involving a maternity dispute, the female who gives birth to the child is considered the natural parent. Burlington Cty. Welfare v. McClain, 189 N.J. Super. 152, 458 A.2d 1348 (1983). The court reflected upon the common experience that cases involving disputed maternity are infrequent compared to paternity disputes; however, they do occur as witnessed by the decision by King Solomon in 1 Kings 3:16-28.

Ohio law, as embodied in its adopted version of the Uniform Parentage Act, determines the natural parent through either blood/genetics and/or birth. Hence, the mother can be established by the birth process or by other means, including DNA blood tests. R.C. 3111.02.

"In most disputed cases, those two ways of identifying natural parents are still valid and reliable. In a small but growing number of cases, however, they can result in confusing and questionable determinations of parentage. The reason for that confusion is modern science and medicine's ability to manipulate the conception and delivery process of a child. By successfully implanting an embryo into the uterus of a female who has become known as the 'gestational surrogate' or 'surrogate host,' modern medicine has devised a way of separating birth from genetics. The introduction of in vitro fertilization means that the female who bears the child may not be the person who provides the genetic offspring for the child's development."

As the court noted, under the applicable Ohio law, both Shelly Belsito (who provided the egg) and Carol Clark (who was to bear the child) would be considered the mother of the delivered child.

"Surrogacy technology did not exist and a separate birth and genetic mother were factually impossible when the statute, case law, and common law were formulated. It must therefore be assumed that the framers of those laws did not intend for the law to result in two mothers. In re Marriage of Moschetta (1994), 25 Cal. App. 4th 1218, 30 Cal. Rptr. 2d 893. This conclusion is buttressed by the fact that the Uniform Parentage Act was intended to address solely the question of legitimacy of a child and not surrogacy. Notes, Uniform Parentage Act. In addition, society and the law recognize only one natural mother and father. Michael H. v. Gerald D. (1989), 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91."

"It is apparent that the law must adapt and change to end the confusion caused by surrogacy. The question is, how will it adapt? Will the genetic test, or the birth test, or some other means be used to identify those individuals who will be classified as having the legal status of natural mother in cases such as this one in which the surrogate has not provided the genetic imprint for the child?"

The matter before the court was one of "first impression" (meaning this was the first time a court in Ohio had been asked to rule on such a question), but a number of courts in other states had addressed surrogacy issues. They include the following cases:

The case of Johnson v. Calvert, 5 Cal. 4th 84, 19 Cal. Rptr. 2d 494, 851 P.2d 776, certiorari denied, (1993) U.S. , 114 S.Ct. 206, 126 L.Ed.2d 163, presented the California courts with a comparable genetic question. A married couple supplied egg and sperm and the surrogate agreed to carry and deliver the child. However, the surrogate was to be compensated, a dispute arose over the compensation, and the surrogate claimed to be the parent of the child. The California Supreme Court ruled in favor of the genetic parents, yet focussed largely on the intent of the parties, rather than the previously-recited test of genetics or birth.

"We conclude that although the Act [the Uniform Parentage Act] recognizes both genetic consanguinity and giving birth as a means of establishing a mother and child relationship, when the two means do not coincide in one woman, she who intended to procreate the child-that is, she who intended to bring about the birth of a child that she intended to raise as her own-is the natural mother under California law." Johnson, 5 Cal. 4th at 94, 19 Cal. Rptr. 2d at 500, 851 P.2d at 782. See, also, Hill, What Does It Mean to Be a "Parent"? The Claims of Biology as the Basis for Parental Rights (1991), 68 N.Y.U.L.Rev. 353."

Hence, where genetics and birth do not manifest in the same woman, the California court focussed on the intent to procreate and to raise the child in identifying the natural mother. The Johnson court abandoned both the genetics and birth tests as the primary means of determining the natural maternal parent, in declaring the genetic mother, rather than the surrogate, to be the natural parent.

Since the opinions of courts from sister states are not formally binding on the Ohio courts, the Johnson intent test was disregarded as being unpersuasive for the following three reasons:

1. The difficulty in applying the Johnson intent test;
2. public policy; and
3. Johnson's failure to recognize and emphasize the genetic provider's right to consent to procreation and to surrender potential parental rights.

On the first issue, intent is often difficult to prove. Disputes can arise on the issue of intent, even where purportedly embodied in a written agreement. Additionally, the court observes the surrogate and genetic mother could jointly have the intent to raise the child.

Public policy mandates are paramount, as the issues of procreation and parentage constitute core societal values. Consequently, any new configuration or embodiment of law in those areas must be consistent with previously declared public policy of Ohio.

Johnson conflicts with enunciated Ohio public policy, in that surrender of parental rights by agreement will not be enforced nor encouraged. Ingram, Surrogate Gestator: A New and Honorable Profession (1993), 76 Marquette L.Rev. 675. See Matter of Baby M., (1988), 109 N.J. 396, 537 A.2d 1227; 1983 Ohio Atty.Gen.Ops. No. 83-001; R.C. Chapter 3107. See, also, Seymour v. Stotsky (1992), 82 Ohio App.3d 87, 611 N.E.2d 454. In surrogacy contracts, a surrogate who chooses not to be declared parent of the child would generally lose the opportunity to be considered the legal parent of the child. Where a fee to the surrogate is involved, this assent by the surrogate amounts to selling a parental right, which is contrary to Ohio law.

Public policy dictates of Ohio require that, in the adoption context, the relinquishing of parental rights of the genetic mother be in an unpressured situation before a disinterested magistrate. R.C. 3107.08. Such procedures are desirable, considering possible financial pressures and the value which society places on procreation. Furthermore, adoption law focuses on the interests of the child, and a natural mother is not free to choose whomever she deems fitting or appropriate to be the legal parent of the child. The selection of the individuals to be the legal parents is a matter closely scrutinized by the state.

Public policy tenets also require finality and stability in establishing the child-parent relationship. A ruling clearly defines the ending of real or potential parental rights in the delivering female, and clearly vests them in the woman ultimately declared to be the legal mother of the child. Court adjudication greatly limits the ability to future challenge the parent/child relationship. R.C. 3107.15.

The third and final deficiency in the Johnson doctrine lies in its overlooking the genetic provider as having the right to choose or to consent. Johnson's leitmotif of granting the surrogate carrier the ability to express her intention to keep or raise the child de-emphasizes what is a basic right in the genetic provider.

"The procreation of a child, that is, the replication of the unique genes of an individual, should occur only with the consent of that individual. See Davis v. Davis, supra, 842 S.W.2d 588. The decision to allow implantation of another's egg and sperm with the understanding that the surrogate will raise the resulting child also involves the surrendering of parental rights. The consent to procreation and the surrender of the right to raise a child of one's own genes must be considered the surrender of basic rights. Id. at 600. See, also, Skinner v. Oklahoma (1942), 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655."

"The exercise of fundamental rights should not be taken lightly, and when the choice is made to exercise or not to exercise those rights, the law must protect that process of choice. Davis v. Davis, supra; Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Cruzan v. Director, Missouri Dept. of Health (1990), 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224. A minimal protection for the basic rights of procreation, and the raising of a child of that procreation, should be to require consent to the surrender of those rights. At the very inception of the process of fertilization, the infertile couple who intends to raise the child and those who would procure the genetics and facilitate implantation should be put on notice that they must have the consent of the genetic provider. Such a clearly stated rule would prevent the involuntary use of an individual's genes. If we are to respect the right of procreation and parentage when a gestational surrogate is used, one of the first questions asked must concern consent of the genetic parents. The Johnson test fails to give that priority, and thus fails to provide adequate protection of basic rights."

As the court rejected the Johnson rationale, it had to establish an appropriate test for Ohio. The genetic test had long been recognized as the primary component in determining legal parentage, so the Ohio court emphasized it should remain the principal factor in determining legal parentage in the surrogacy context.

The genetic component additionally provides stability, given the relative certainty of DNA blood testing. As a consequence, the prospect of a surrogate selling her opportunity to be declared the natural parent of the child diminishes, and the more nebulous aspect of "intent" is subsumed in the more readily verifiable aspect of genetic testing.

The court then acknowledges that a genetic test cannot be the sole determinant for the status of legal parent. There are situations in which the surrogate who provides no genetic component of the child may wish to be the legal parent of the child. There are situations in which the genetic parent may relinquish parental rights, as is true in the adoption laws of all of the fifty states. R.C. 3107. This is further countenanced with waiver of parental rights by anonymous sperm donors in non-spousal artificial insemination. R.C. 3111.30 through 3111.38. This same rationale should be applied where the non-genetic surrogate wishes to raise the child as her own, yet this would occur only after waiver of such rights by the genetic parents.

In concluding, the court provides a two-pronged test as to the legal parentage of a child born through gestational surrogacy:

1. The genetic parents of the child are the natural and legal parents;
2. However, the consent of the genetic parents to raise the child is paramount, and if they have not waived their rights and have decided to raise the child, then they must be recognized as the natural and legal parents.

"By formulating the law in this manner, both tests, genetics and birth, are used in determining parentage. However, they are no longer equal. The birth test becomes subordinate and secondary to genetics."

"In conclusion, under Ohio law, when a child is delivered by a gestational surrogate who has been impregnated through the process of in vitro fertilization, the natural parents of the child shall be identified by a determination as to which individuals have provided the genetic imprint for that child. If the individuals who have been identified as the genetic parents have not relinquished or waived their rights to assume the legal status of natural parents, they shall be considered the natural and legal parents of that child."

"In applying the facts to the enunciated law, Anthony and Shelly Belsito are declared the genetic parents of the unborn child carried by Carol S. Clark, the gestational surrogate, impregnated through in vitro fertilization. As Anthony and Shelly Belsito have not waived their rights to be the natural and legal parents of the child, the court finds, as a matter of law, that Anthony Belsito and Shelly Belsito are the natural and legal parents of the unborn child carried by Carol S. Clark."

"As a result, the child is the legitimate child of Anthony and Shelly Belsito, and may inherit through the child and the child may inherit through them. Anthony and Shelly Belsito along with the child to be born, have all other rights and responsibilities that are entitled in a parent-child relationship. Adoption is unnecessary and Anthony Belsito shall be listed as father and Shelly Belsito as mother upon the birth certificate of the child."

As noted in the preamble, these three cases are unlikely to be binding authority in the states of the majority of those who have chosen to review this article. However, they are instructive on a practical and logistical level, and may indeed be persuasive if provided to courts in sister states.

This case emphasizes the Byzantine and Gothic situations which individuals (and courts) face in the evolving nature of family relationships. Though "lower tech," than a typical surrogacy situation (involving only frozen semen), and not technically a surrogacy issue (involving proposed use of the frozen semen to impregnate a woman who would choose to rear the child as her own), nonetheless it delineates the different expectations of a host of individuals or entities:

1. A deceased unmarried man, who donated semen to be frozen at an infertility institute, and who may, or may not, have intended that it be utilized by his girlfriend following his death;
2. The girlfriend, who claims rights to this semen, with the issue being whether the deceased donor effectively conveyed the rights to use the semen to her;
3. The deceased donor's mother, who, as executrix under his will, argued whether the frozen semen was property of the estate, or alternatively whether it should be destroyed;
4. A surviving child of the donor, who did not desire siblings to be born after his father's death, and who expressed a primitivist macabre notion that these select bodily secretions be placed in the casket with his deceased father;
5. The deceased donor's sister, motivated by a desire not to have posthumous nieces and nephews and/or a desire to honor her deceased bother's wishes, which were difficult to determine as being complicated by his illness and death;
6. The defendant infertility institute, which probably did not care what was done with the frozen semen, yet most probably desired backside protection by punting the issue to the court for its decision; and
7. The two courts which had this factual and legal miasma dropped in their respective laps.

At a minimum, the case underscores the options of which individuals are availing themselves in "planning" their "family building." On a legal level of analysis, the courts stopped short of defining what everyone's respective interests were to the much sought-after frozen semen. Rather, the court concluded that the sole relevant issue to be determined upon trial of the case was whether the donor was competent and not under undue influence at the time of the attempted donation.

The court realized the possibility of irrepable harm if the girlfriend was permitted to impregnate herself with the frozen semen prior to a determination or whether the donor was competent and not under undue influence when the attempted donation was made. Otherwise, if the girlfriend were permitted to impregnate herself, and the trial court later determined that the donor did not effectively donate his semen to her, then the decidedly thorny issue of unauthorized embryo development and/or birth of a child would greatly complicate the issue.

On a purely practical level, this case underscores the necessity of involvement of psychiatrists/psychologists/counselors as part of the surrogacy team of professionals (also including infertility specialists, obstetricians/gynecologists, and attorneys). To reiterate, the genetic mother filed for divorce from the genetic father in a gestational surrogacy during the pregnancy (with triplets) of the surrogate carrier.

Often the emphasis in such a psychological evaluation is whether the surrogate is an appropriate candidate to become impregnated, carry the child through the pregnancy, yield the child to the genetic parents, and be involved to whatever degree the parties determine in terms of the development of the child following the birth.

Yet in this instance, psychiatric/psychological/counseling evaluation should have likewise been made of the married couple, both in terms of basic amenity and protection of the surrogate, as well as in an evaluation of the best interests of the children to be born.

On a legal level of analysis, this case contains important rulings on the constitutionality of surrogacy arrangements vis-a-vis the terms of a statute designed to greatly limit surrogacy options.

The court determined that a parent's right to the custody and control of one's child in a surrogacy context is a fundamental interest guaranteed by the United States and Arizona Consitutions. This is deemed to be a basic civil right which protects individual decisions in matters of child bearing from unjustified intrusion by the state, as marriage and procreation are fundamental to the very existence and survival of the race.

The practical effect of this determination, in legal terms, is that it requires application of "strict scruitiny" analysis, so that government can only justify the abridgement of such a fundamental right by demonstrating that a counterveiling and compelling state interest is thereby promoted. The means employed must be closely tailored to the end sought to be achieved. Furthermore, the state must prove that the regulation is necessary to achieve the legislative objective.

In layman's terms, this restricts the ability of the state (at least in Arizona) from having a free, unfettered hand in passing statutes in the surrogacy area. Such statutes will be closely scrutinized by the courts.

The particular problem with the statute, which conferred more rights upon genetic fathers than upon genetic mothers, was two-fold:

1. It violated equal protection under the federal and Arizona constitutions, in that the genetic mother had fewer rights than the genetic father did in terms of the ability to be declared legal parents of the child in the surrogacy arrangement (the genetic mother is conclusively presumed to not be the legal mother of the child, whereas her husband was presumed to be the legal father of the child); and
2. Procedural due process of the respective constitutions is violated, in that the genetic father of the child had an opportunity to prove he should be the legal father of the child, while the genetic mother of the child (to whom he was married at the time of conception and implantation) was denied any opportunity under the statute to prove she should be the legal mother of the children.

Again, the essential effect of this ruling is that (at least in Arizona) the legislature is not free to completely regulate this matter by simple majority vote of its members. At least in Arizona the courts will independently closely scrutinize any statute involving surrogacy.

The concurring opinion, while agreeing with the decision, focusses on another set of reasons in arriving at the same conclusion.

First, the emphasis should be on what is in the best interests of the child, as is customary in other family law situations, including child custody in the divorce context as well as in an adoption situation. If the statute conclusively presumes that the surrogate is the legal mother, then the court has not fulfilled its customary obligation of analyzing what is in the best interests of the child. Also, it is more than likely that the surrogate would not be the best choice of mother, as the rearing of the child was not within her contemplation under the agreement. She did not sign up for this duty.

Second, the concurring opinion finds the statute to be overly broad, in that the state may have a legitimate interest in regulating what it deems to be the "mercenary" aspects of compensating surrogates; however, the concurring opinion finds no reason that uncompensated, or "compassionate" surrogacy should be prohibited.

This case is both logistically and legally helpful to those contemplating surrogacy.

The case contains considerable detail on the procedures commonly utilized by infertility clinics. This may be of assistance in assuring a judge that surrogacy is not so novel nor frightening a proposition that accepted medical protocol can not alleviate a large part of such apprehension. Surrogacy is becoming common and accepted practice, both medically and legally.

The case involves Ohio's version of the Uniform Parentage Act (UPA), which has been adopted in a number of the states. The court concludes that this Act did not contemplate the determination of who would be declared the natural or legal parent of the child born through gestational surrogacy. In this vacuum, the courts must render such a determination.

The court adopts a two-pronged analysis, first requiring a determination of who are the generic parents? However, this is an insufficient test for all possible factual scenarios. Genetics are not the sole determinant, nor arbiter.

There could arise a situation where "the surrogate who did not provide the genetics of the child may wish to be the legal parent." The author presumes this refers to the situation more commonly known as "egg donation," where the woman bearing the child does so with eggs donated by another, yet the delivering woman wishes to treat the child as if it were her own genetic, natural, and legal child. In such a situation, sole reliance on genetics in determining legal parentage of the child would be inappropriate. Hence, in the second prong of the test, intention is also important. The genetic parent(s) may waive his (her)(their) rights to the child.

The case also is significant for addressing (and rejecting) the rationale adopted by the California courts in Johnson v. Calvert (1993) 5 Cal. 4th 84, 19 Cal. Rptr. 2d 494, 851 P.2d 776, certiorari denied, (1993), U.S. , 114 S.Ct. 206, 126 L.Ed.2d 163. The Johnson test is to determine the intent to procreate and raise a child, in order to identify the natural or legal mother. This was rejected by the Ohio courts as:

1. There may be difficulty in determining intentions, even if there is a written agreement (although the example given -- there may be situations where the genetic mother and a surrogate carrier both wish to raise the child -- is not as strong as it might be);
2. Public policy considerations are ignored which would countermand lending effect to expressed intentions. These include the precept that the state will not enforce nor encourage private agreements or contracts that give up parental rights; the proscriptions against sale of parental rights; the bypassing of customary procedures (generally judicial) where the relinquishing biological mother in the adoption context is given an unpressured opportunity before a disinterested magistrate to surrender her parental rights; the ignoring of the "best interest of the child" test customarily applied in family law and adoption contexts; and the undermining of stability of the child-parent relationship where a final court order is not obtained declaring legal parentage.

On a logistical note, the case is significant in that it recognizes the petitioning of the court for a declaration of parentage prior to the birth of the child. This is helpful for a number of reasons, including

1. resolving this issue sooner rather than later;
2. resolving this issue prior to the birth of the child, so that the genetic parents and the surrogate can remove an element of anxiety or apprehension in order to concentrate on the customary concerns attendant to birth and delivery of the child;
3. Eliminating a source of possible confusion of hospital and medical personnel as to who would make informed consent decisions for medical procedures on behalf of the child; and
4. Alleviating issues of who has custody of the child as it leaves the hospital for its new home.

A second logistical benefit is declaration of who shall be listed as the natural and legal parents on the birth certificate of the child prior to its birth.

The author of this article utilizes this procedure to alleviate the unfortunate circumstances which accompanied the birth of the first gestational surrogacy child in the state of Georgia. There, the hospital refused to provide to the birth certificate issuing authority the names of the genetic parents of the child (despite their prior agreement to do so). The strain upon the genetic parents and the surrogate and her husband was pronounced, and this form of imbroglio should scrupulously be avoided. What should have been a joyous occasion (the birth of a child) assumed less than salubrious proportions.

It is hoped that this article is of benefit to both lay people and legal practitioners. The author has made an attempt to appeal to both audiences and correspondingly the tenor of the article may have been less in-depth than desirable for legal practitioners, while correspondingly being less than completely understandable to lay people.

If so, the author apologizes, yet hopes that the readers were able to gleam something of benefit for their particular needs.

August, 1996