Unlike many states, Ohio lacks any kind of statute that directly addresses the rights related to gestational surrogacy. However, a number of court decisions have determined whether or not a court can enforce a surrogate agreement.
In the landmark 2007 case J.F. vs. D.B., the Ohio Supreme Court heard arguments on whether or not gestational surrogacy agreements were enforceable. The decision went in favor of the intended parents, but there are still questions related to other legal aspects of surrogacy in the state. Our reproductive law attorney can explain further.
In J.F. v. D.B., an Ohio court addressed a dispute arising from a gestational surrogacy arrangement. The intended parents entered into an agreement with a surrogate in 2003 who agreed to carry a child conceived through in vitro fertilization using the intended parents’ genetic material. This was done in exchange for financial compensation.
After the child’s birth, a legal conflict resulted from the surrogate refusing to hand the children over to the intended parents. After negotiations broke down, a lawsuit was filed, and the case ultimately went to trial.
The initial trial court ruled in favor of the surrogate, holding that provisions in the contract that required the surrogate to give up her parental rights went against public policy. The Court of Appeals reversed that decision, sending the case to the Ohio Supreme Court. Ultimately, the Ohio Supreme Court ruled in favor of the intended parents, holding that the surrogacy agreement was valid and enforceable.
The Ohio Supreme Court ultimately upheld the validity of gestational surrogacy agreements under Ohio law, which has become the basis for these agreements being valid in the state ever since. The court made it clear that when a surrogate has no genetic connection to the child, she does not gain parental rights simply by carrying the pregnancy. Instead, the intended parents are recognized as the legal parents from the very beginning.
The court focused heavily on the intent of the parties. If you enter into a gestational surrogacy arrangement with a clear agreement regarding parental rights, the law will prioritize your role as the intended parent. This approach avoids the uncertainty that can arise if parentage depends entirely on childbirth instead of genetics or a written agreement.
However, the court also emphasized that its decision applies specifically to gestational surrogacy. The absence of a genetic link between the surrogate and the child played a major role in the decision. Because the surrogate was not biologically related, the court found no basis to grant her parental rights.
This decision does not extend the same protections to traditional surrogacy. In a traditional surrogacy arrangement, the surrogate uses her own egg, which means she has a direct genetic connection to the child. That biological link changes how courts determine who has parental rights.
If you pursue traditional surrogacy, the surrogate may have enforceable parental rights at birth. Courts are far less willing to terminate those rights based solely on a pre-pregnancy agreement. Instead, the process may require adoption or additional court proceedings to establish the intended parents’ legal status.
The ruling in JF v. DB draws a clear line in that it upholds gestational surrogacy agreements where the surrogate has no genetic tie, but it leaves traditional surrogacy in more of a gray area that has to be decided on a case-by-case basis.
Ohio does not yet have a specific law in the books regarding surrogacy rules, but it does have at least one landmark court case which has set a precedent. If you are considering surrogacy in Ohio (either as the surrogate or the intended parent), the decision in J.F. vs. D.B. can have an impact on your rights. Call TR Law Offices today to get the help you need with navigating this life-changing process.
