The law of Ohio is unsettled regarding surrogacy and Ohio statutes governing artificial insemination “do not deal . . . with surrogate motherhood.” Moreover the state’s case law on surrogacy has not completely settled the issue.
In a 1992 case, the Ohio Court of Appeals denied custody to the intended mother in a traditional surrogacy agreement (in which the surrogate mother is the biological contributor of the egg) because she had no biological tie to the child and because the contract was an oral agreement. The Court did not discuss how it would have ruled if the case contained a written contract, but it did conclude that the legality of surrogacy agreements in Ohio is “unsettled and open to considerable scrutiny.”
The law appears to favor the position that contributing some of the genetic material strengthens a custody case brought in Ohio by the intended parents in a surrogacy agreement. In the case of Belsito v. Clark, the court held that the intended parents in a gestational surrogacy agreement (in which the surrogate mother is not the biological contributor of the egg) were the natural and legal parents of the resulting child. However, the court noted that “as a matter of public policy, the state will not enforce or encourage private agreements or contracts to give up parental rights.”
Further in the case of Turchyn v. Cornelius, the Ohio Court of Appeals held that it was in the best interests of a child conceived through a traditional surrogacy arrangement to use genetic testing to determine parentage. In this case, two couples had created a written agreement under which the wife of one couple was to be inseminated by the husband of the other couple and relinquish custody of the child to the biological father and his wife after the birth. The surrogate mother reneged on the agreement, and invoked a state statute establishing that a child born from artificial insemination to a married woman is the natural child of her husband. The Court held that the statute contemplated a procedure performed by a physician utilizing an anonymous sperm donor and did not apply in this case.
In the 2001 case of Decker v. Decker, a man who entered into an oral agreement with his sister to carry a child for him and his same-sex partner. The sister was inseminated by an anonymous donor, but during the pregnancy began to have doubts about the arrangement. The Court determined that the surrogate was the legal mother of the child for the following reasons:
(1) the child had no biological connection to the same-sex couple;
(2) there was no written agreement or certification of the verbal agreement by a family agency or court; and
(3) biological parents may be denied custody only in the case of abandonment, valid contractual relinquishment of custody, or total inability to provide care or support.
The position adopted by the Court was that even if a determination is made that a biological parent has forfeited his/her rights or that custody would be detrimental to the child, the burden is still on the party seeking parental rights to prove, that it would be unsuitable to grant custody to the biological parent. The Court even found it possible “for a parent to contractually relinquish their rights to custody and still reacquire custody based on the non-parent’s inability to show parental unsuitability.” However, this decision did not discuss the adoptive parents’ sexual orientation as an issue. In fact, the judge’s opinion outlines how the brother’s partner might have gone about adopting the child had the surrogacy arrangement been legitimate. Thus, it seems that the potential for same-sex couples in Ohio to use surrogacy arrangements exists, provided the contracts are entered into legally.
In the case of J.F. v. D.B, the Ohio Supreme Court held that a particular gestational surrogacy contract in question did not violate public policy, even when it prohibited the gestational surrogate from asserting parental rights. The Court reasoned that the gestational surrogate had no claim to legal parentage at the time of the agreement, and therefore she had no parental rights to assert.
There is no explicit prohibition in Ohio on lesbian, gay, bisexual or transgender couples jointly adopting a child, but an Ohio Court of Appeals has ruled that a parent’s parental rights are terminated when the child is adopted by a non-spousal partner.