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Tennessee Supreme Court Holds Public Policy Does not Prohibit Enforcement of Traditional Surrogacy Contracts


The term “family” is continuously evolving. There are many options to consider in deciding when and how to start a family. Due to scientific advancements, there are ways for people to seek the assistance of a “surrogate” in order to have children. Two commonly known types of surrogacy agreements among the parties involved are gestational and traditional. A gestational surrogacy arrangement is one in which the gestational surrogate has no genetic relation to the child. A traditional surrogate is when the biological mother of the child she is carrying. The laws affecting surrogacy in Tennessee are complicated and varied. If you are considering adoption or are dealing with any kind of child custody matter, you are encouraged to contact an experienced family law attorney who will work to protect and advance your rights.

In a recent case, In re Baby et al., the Tennessee Supreme Court addressed the enforceability of the traditional surrogacy arrangement within the State. Here, a couple could not have children together, and they decided to enlist the help of a surrogate in order to start a family. The couple, the surrogate, and her husband entered into a contract for a traditional surrogacy. Under the agreement, the surrogate would undergo artificial insemination, and if she became pregnant and gave birth, she would give up the child to the intended mother and biological father. Before the child was born, all of the parties filed a joint petition requesting the juvenile court to declare the paternity of the child, award custody to the intended parents, and terminate the surrogate’s rights.

The juvenile court granted the parties’ requests. A few weeks later, the surrogate had the baby, heeded medical advice, and chose to breastfeed the child for a short while. When the baby was just about a week old, the surrogate filed various motions, requesting that the juvenile court vacate the earlier order, set aside the surrogacy contract, and grant her custody of the child. The juvenile court denied the requests and upheld its prior ruling. The appellate court affirmed the juvenile court. The surrogate appealed, asking the Tennessee Supreme Court to take the case to consider issues of public policy, paternity, jurisdiction, the termination of parental rights, and custody.

In a lengthy opinion, the Court pointed out that this was a matter of first impression in the state of Tennessee. The Court ultimately held that Tennessee public policy does not bar the enforcement of traditional surrogacy contracts, but it does impose restrictions. In essence, these limitations do not allow for the termination of a surrogate’s parental rights via judicial validation of a surrogacy contract prior to a child’s birth. Therefore, in this case, the Court found unenforceable the contractual provisions that avoided the applicable statutory methods for the termination of parental rights. By so ruling, the Court concluded that the juvenile court properly asserted jurisdiction over the issues of custody and paternity. The Court further vacated the part of the lower court’s ruling that terminated the surrogate’s rights. Under this holding, the surrogate retained her parental rights, which could only be terminated in a future proceeding to that effect. The Court ultimately sent the matter back to the juvenile court to determine issues concerning child support and visitation but the Supreme Court, in the opinion, informed the Tennessee legislature that there was need for them to act and encouraged them to pass new laws in Tennessee as it relates to surrogacy.

Courts throughout the country have differing views on the enforceability of surrogacy agreements. It is a delicate and complicated process, one that clearly requires the assistance of an experienced family law attorney. Widrig Law PLLC is a family law firm serving clients in Nashville, Murfreesboro, Franklin, Mt Juliet, Smyrna, Lebanon, Fairview, Bellevue, Gallatin, Springfield, and Clarksville. If you have questions about surrogacy, child custody or any other related matters, just call us at 615-417-7800 to schedule your consultation.

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