                    IN THE SUPREME COURT OF TENNESSEE
                               AT NASHVILLE
                      October 1, 2013 Session Heard at Murfreesboro

                                        IN RE BABY ET AL.

            Appeal by Permission from the Court of Appeals, Middle Section
                         Juvenile Court for Davidson County
              No. 20116298PT150334        Betty K. Adams Green, Judge


                 No. M2012-01040-SC-R11-JV - Filed September 18, 2014




W ILLIAM C. K OCH, J R., J., concurring.

        This case of first impression regarding the enforceability of an international
traditional surrogacy contract will have far-reaching ramifications both in Tennessee and
beyond. While I concur, in general terms, with the Court’s disposition of this particular case,
I have chosen to write separately because I cannot concur with the Court’s conclusion that
“traditional surrogacy contracts do not violate public policy as a general rule.” While the
surrogate in this case may not have succeeded in demonstrating that this particular traditional
surrogacy contract is unenforceable as against public policy, this case is not an appropriate
vehicle for this Court to broadly declare that traditional surrogacy agreements, or any other
surrogacy agreement for that matter, are consistent with Tennessee’s public policy.

                                                     I.

       The market for fertility treatment in the United States, including surrogate births, is
big business.1 This market is largely unregulated because the United States, unlike many
other countries, has no national policies governing assisted reproductive technology.2 Thus,
affluent couples from Europe, Asia, and Australia, like the intended parents in this case, are


        1
         It has been estimated that in 2004, the fertility market in the United States, including the use of
surrogates, was approximately $3 billion. Debora L. Spar, The Baby Business: How Money, Science and
Politics Drive the Commerce of Conception 3 (2006).
        2
          Mark Hansen, . . . And Baby Makes Litigation, ABA Jour., Mar. 2011, at 52 (“Hansen”). This
distinction between the United States and other countries reflects “a divide between the United States and
much of the word over fundamental questions about what constitutes a family, who is considered a legal
parent, who is eligible for citizenship, and whether [surrogate] child birth is a service or exploitation.”
Tamar Lewin, Coming to U.S. for Baby, and a Womb to Carry It, N.Y. Times, July 6, at A1 (“Lewin”).
looking to the United States in ever-increasing numbers to find surrogate mothers for their
children.3 By some estimates, the United States is now second only to India in providing
surrogate mothers. Over 1,400 babies are born in the United States each year for
international parents.4 As the Chief Justice of the Wisconsin Supreme Court recently noted,
“some American states with less restrictive or no laws governing surrogacy contracts have
become interstate and international medical surrogacy tourism destinations.” In re Paternity
of F.T.R., 2013 WI 66, ¶ 95, 833 N.W.2d 634, 657 (2013) (Abrahamson, C.J., concurring).

        There can be no denying that the ability to create children using assisted reproductive
technology has far outdistanced the legislative responses to the myriad of legal questions that
surrogacy raises. Most states do not have statutory provisions addressing these questions.
In re Paternity of F.T.R., 2013 WI 66, ¶¶ 37-38, 833 N.W.2d at 644. The increasing
popularity of surrogacy will only cause these problems to proliferate.5 As Chief Justice
Abrahamson has noted, “the validity of surrogacy contracts . . . is at this very time being
debated across the globe. Other states and nations are, at best divided over whether to
enforce such contracts because of the difficult public policy questions they present.” In re
Paternity of F.T.R., 2013 WI 66, ¶¶ 90-91, 833 N.W.2d at 656 (Abrahamson, C.J.
concurring).6 There is currently no clear majority approach to surrogacy, and, in fact, there
is not even a clear plurality approach.7



        3
            Lewin, supra n.2.
        4
         Sasha N. Swoveland, Note, Surrogacy and Insurance: The Call for Statutory Reform in Ohio, 26
J.L. & Health 143, 164 (2013). It has been estimated that 2,000 babies will be born through surrogacy in
2014 in the United States. Lewin, supra n.2.
        5
         Hansen, supra n.2, (noting that “as medical science continues to push the envelope forward, making
the process of having a baby via methods other than that intended by nature accessible to all, the legal issues
are multiplying.” These problems will be exacerbated by the fact that the increasing costs of a surrogate birth
which now range between $80,000 and $150,000 “are pushing many would-be parents . . . to try to cut
corners and go the do-it-yourself route. This pro se mentality . . . most often results in surrogacy agreements
that break down, frustrate the parties’ intentions and wind up in court.” Hansen, supra n.2; see also Lewin,
supra n.2; Stephanie Saul, Building a Baby, With Few Ground Rules, N.Y. Times, Dec. 13, 2009, at A1
(“Saul”).
        6
         Chief Justice Abrahamson has identified four of the most significant legal and ethical issues implicit
in surrogacy contracts. In re Paternity of F.T.R., 2013 WI 66, ¶ 98, 833 N.W.2d at 658; see also Sue A.
Meinke, Surrogate Motherhood: Ethical and Legal Issues, Nat’l Reference Ctr. for Bioethics Literature,
Georgetown Univ. (1988), http://bioethics.georgetown.edu/publications/scopenotes/sn6.pdf.
        7
        Paul Arshagouni, Be Fruitful and Multiply, by Other Means if Necessary: The Time Has Come to
Recognize and Enforce Gestational Surrogacy Agreements, 61 DePaul L. Rev. 799, 800 (2012).

                                                     -2-
                                                   II.

        Despite Tenn. Code Ann. § 36-1-102(48) (2010), Tennessee must count itself among
those states that lack statutory governance of surrogacy contracts. The Court’s opinion
accurately recounts the background of this statute, and this background leads to only one
conclusion – the Tennessee General Assembly did not intend to address the issues associated
with surrogacy in any meaningful way when it enacted this statute, almost as an afterthought,
in 1995.8 Any effort to ascertain the purpose of this statute is doomed to fail because the
statute itself is “almost as enigmatic as the dreams Joseph was called upon to interpret for
Pharaoh.”9 Thus, were we to be candid, we would find that Tenn. Code Ann. § 36-1-102(48)
sheds no light at all on the question of whether surrogacy contracts in general, or the
particular surrogacy contract involved in this case, is void as against public policy.

       Tennessee’s public policy is reflected in its constitution, statutes, judicial decisions,
and common-law rules. State ex rel. Swann v. Pack, 527 S.W.2d 99, 112 n.17 (Tenn. 1975)
(quoting Home Beneficial Ass’n v. White, 180 Tenn. 585, 588, 177 S.W.2d 545, 546 (1944)).
Even though this Court has stated that the articulation of the State’s public policy is primarily
a legislative prerogative and that our role in declaring public policy is limited, Hodge v.
Craig, 382 S.W.3d 325, 337-38 (Tenn. 2012), the Court in this case is using Tenn. Code
Ann. § 36-1-102(48) as a springboard to dive into deep public policy waters. The Court is
construing the statute as an invitation to make broad public policy pronouncements regarding
the viability of surrogacy contracts in Tennessee. I do not join the Court in this exercise.

        The Court has chosen to support its general assertion that surrogacy contracts are valid
and enforceable by treating them as contracts, nothing more, nothing less. This is a
convenient choice because there can be little dispute that the freedom to contract is a vital
component of personal liberty, Dick Broadcasting Co., Inc. of Tennessee v. Oak Ridge FM,
Inc., 395 S.W.3d 653, 673 (Tenn. 2013) (Koch, J., concurring), and that Tennessee’s public
policy favors permitting otherwise competent parties to strike their own bargains. Hughes
v. New Life Dev. Corp., 387 S.W.3d 435, 475-76 (Tenn. 2012). But, of course, these
principles do not apply to every contract.

        Unfortunately, the Court’s purely contractual rationale overlooks two salient points.
First, surrogacy contracts are not “standard run-of-the-mill contracts.” As Chief Justice
Abrahamson aptly points out “they purport to govern bodily intrusions, the use of human
bodies, the creation of a child, and the custody and placement of a child once it is born.” In


       8
           See Act of May 26, 1995, ch. 532, 1995 Tenn. Pub. Acts 951.
       9
           Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).

                                                   -3-
re Paternity of F.T.R., 2013 WI 66, ¶ ¶ 81-82, 833 N.W.2d at 654 (Abrahamson, C.J.
concurring). Second, as more than amply illustrated by this case, “surrogacy agreements that
go badly have profound implications, particularly for the children.” 10

                                                    III.

       Surrogacy is currently a reality in Tennessee. The number of surrogacy agreements
in Tennessee will surely increase as persons who are unable to have children on their own
resort more frequently to various assisted reproductive technologies, including surrogacy.
At present, Tenn. Code Ann. § 36-1-102(48) provides no helpful guidance to prospective
surrogate mothers and intended parents or to the bench and the bar when they confront the
numerous and complicated questions and issues that surrogacy triggers. The legal rules
governing this area are ambiguous, if not non-existent, and they need to be clarified. Until
they are, surrogacy contracts in Tennessee will be in legal limbo.11

        The question we must address in this case is which branch of government is best
suited for the task of defining and clarifying the legal framework for surrogacy agreements
in Tennessee. While the desire to bring some order to the ambiguity is commendable, the
case-by-case approach the courts must use is less effective in circumstances like this than the
far more dynamic ability of the General Assembly to address important public policy issues.
This is a case where the Court would be well-served to leave the articulation of Tennessee’s
acceptance or rejection of surrogacy contracts as a matter of public policy to the General
Assembly.12

       For these reasons, I would take a far narrower approach to reach the same result
reached by the Court. Rather than broadly stating that “traditional surrogacy contracts do not
violate public policy as a general rule,” I would find that the surrogacy agreement in this case


        10
             Saul, supra n.5.
        11
             Hansen, supra n.2; Saul, supra n.5.
        12
           It is true that the Tennessee General Assembly has let these important issues lie fallow for almost
twenty years and that legislatures in other states have themselves been slow to address these issues, despite
the courts’ requests that they do so. See In re Paternity of F.T.R., 833 N.W.2d at 653; Raftpol v. Rainey, 12
A.3d 783, 801-03 (Conn. 2011). However, the courts’ response to legislative inaction, whether inadvertent
or intentional, should always be tempered by the admonition in Article II, Section 2 of the Constitution of
Tennessee that persons belonging to one branch of government should avoid exercising the powers properly
belonging to the other branches. The better course at this juncture would be accredit the presumption, albeit
rebuttable, that the members of the General Assembly, like other public officials, will discharge their duties
in good faith. See State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734,
775 (Tenn. Ct. App. 2001).

                                                     -4-
is enforceable, except to the extent, as found by the Court, that it is inconsistent with the
statutes explicitly governing the termination of parental rights and the care and custody of
children born out of wedlock. The broader public policy questions should be left to the
General Assembly.13


                                                ______________________________
                                                WILLIAM C. KOCH, JR., JUSTICE




        13
           In fact, the Court’s broad holding in this case may very well complicate the General Assembly’s
ability to address many of the difficult legal and ethical issues that surrogacy raises. One might wonder
whether the General Assembly can now decide, notwithstanding the Court’s decision, that some types of
surrogacy or some components of surrogacy agreements are not consistent with Tennessee’s public policy.
The inevitable litigation over that question must wait for another day.

                                                   -5-
