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Ohio Surrogacy Law
Author: Richard E. Dobbins Attorney at Law
Gestational surrogacy and surrogate agreement issues are unsettled in Ohio. Ohio's policy on "surrogate agreements," when considering Ohio's adoption laws, is open to considerable scrutiny as far as enforceability. Seymour v. Stotski (1992), 82 Ohio App.3d 87, 611 N.E.2d 454; See R.C. 3107.10.
However, 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 are identified by a determination as to which individuals have provided the genetic imprint or the genes 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. Belsito v. Clark (1994), 67 Ohio Misc. 2d 54, 6, 644 N.E.2d 760. Under this test, both genetics and birth are used in determining parentage. However, the birth test becomes subordinate and secondary to the genetics test.
This new analysis satisfies the enunciated public policy of Ohio. First, the state will not enforce or encourage private agreements or contracts to give up parental rights. See 1983 Ohio atty.Gen.Ops. No. 83- 001; R.C. Chapter 3107; See also, Seymour v. Stotski, supra. When the genetic parents are identified, they become the natural parents and are not subject to agreements to the contrary.
Second, the adoption laws of Ohio require that a relinquishing natural mother be given an unpressured opportunity before a court or agency head to surrender her parental rights. R.C. 3107.08. California and New York have adopted an intent-to-procreate test. Under this test, the natural mother is determined by who intended to give birth to a child and to raise as her own. But, this test does not address the concerns of the suitability of the gestational surrogate or her spouse as parents, and the legality of the private agreement that has not been sanctioned by a court. 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; McDonald v. McDonald (1994), 196 A.D.2d 7, 608 N.Y.S.2d 477. Ohio has expressly not accepted the reasoning of the California and New York Courts. Belsito, supra. The adoption laws of Ohio provide for the best interest of the child by placing the child in a stable child-parent relationship which the intent test does not satisfy.
Last, Ohio now recognizes the genetic provider's right to choose or consent. The replication of the unique genes of an individual should occur only with the consent of the individual. Belsito, supra; See Davis v. Davis (Tenn. 1992), 842 S.W.2d 588.
The definition of a natural parent has been given a new definition by Ohio courts. The test to identify the natural parents is to determine who are the genetic parents. When there is a nongenetic-providing surrogate, a genetic test minimizes or avoids the question of the surrogate selling her right to be determined as the natural parent. If the surrogate has not contributed to the genetics of the child, and if the genetic parent or parents have not waived their rights, the surrogate cannot be determined the natural parent. The surrogate cannot then sell a right she does not possess. In addition, given the relative certainty of DNA blood testing, such a test for parental identity would be simpler to apply and more certain in results than a Johnson-type intent test. Belsito, supra.
In Ohio, a natural parent refers to the child and parent being comprised of the same blood or related by blood. Owens v. Bell (1983), 6 Ohio St.3d 46, 48, 6 OBR 65, 67-68, 451 N.E.2d, 241, 243; R.C. 2317; R.C. 3111.09. But, with the advancement of technology, disputed parentage cases compare DNA or genetic traits and the genetic consanguinity of the child and the alleged parent. Domigan v. Gillette (1984), 17 Ohio App. 3d 228, 17 OBR 494, 479 N.E.2d 291, paragraph two of the syllabus; See R.C. 3111.09. These tests can conclude that a woman giving birth to a child is not the genetic or natural mother. After Ohio's adoption of the Uniform Parentage Act, maternity can be established by identifying the natural mother through the birth process or by other means, including DNA blood tests. R.C. 3111.02.
The new test is supported by the Ohio law of adoption which recognizes that someone other than the natural parent may assume the same legal status as the natural parent. State v. Barger (1920), 14 Ohio App. 127, 129; Angel v. Angel (C.P. 1956), 74 Ohio Law Abs. 531, 533-34, 2 O.O.2d 136, 137, 140 N.E.2d 86, 87. A non-spousal artificial insemination anonymous donor under R.C.3111.30 through 3111.38 is a prime example of a natural parent waiving his rights and duties of parentage and another assuming the role as natural parent. R.C. 3111.37(B) states that, "If a woman is the subject of a non-spousal artificial insemination, the donor shall not be treated in law or regarded as the natural father of a child [so] conceived ...." An Ohio probate court has stated that:
This concept should be recognized and applied to the identification of the legal parent of a child delivered by a non-genetic providing surrogate. It should be applied when the gestational surrogate wishes to raise the child she has delivered. It must apply only with consent, or waiver of consent, of the genetic parents. Belsito at 65.
There are several remaining issues that have not been decided by the courts or by the Ohio legislature to date. One, what constitutes consent, or waiver of consent, of the genetic parents and the various issues surrounding consent. And, two, whether adoption procedures are applicable to the process of affirming the non-genetic surrogate's status as legal parent. The Ohio legislature has enacted consent forms for other actions involving artificial insemination, but not for surrogate motherhood. See R.C. 3111.35. This is a vast area of Ohio law that has remained untouched and open to interpretation.
June 2000
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
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