[Cite as J.F. v. D.B., 116 Ohio St.3d 363, 2007-Ohio-6750.]




                    J.F., APPELLEE, v. D.B. ET AL., APPELLANTS.
           [Cite as J.F. v. D.B., 116 Ohio St.3d 363, 2007-Ohio-6750.]
Child custody — Breach of surrogacy contracts — Public policy.
               (No. 2006-0843 — Submitted April 17, 2007 – Decided
                                   December 20, 2007.)
                   APPEAL from the Court of Appeals for Summit County,
                     No. 22709, 165 Ohio App.3d 791, 2006-Ohio-1175.
                                  __________________
        PFEIFER, J.
        {¶ 1} The procedural history of this case includes several court decisions
in two states, but the relevant facts can be easily summarized. Eggs from a
nonparty donor were artificially inseminated with semen from appellee, J.F., and
implanted in appellant D.B., who subsequently gave birth to triplets. The triplets
live with their biological father. Prior to these events, J.F., D.B., D.B.’s husband,
also an appellant, and the egg donor had executed a gestational-surrogacy
contract. The agreement provides that D.B. will “not attempt to form a parent-
child relationship with any child conceived pursuant to the contract” and will
“institute proceedings” to “terminate [her] parental rights” upon the birth of the
children. In return, J.F. agreed to pay D.B. $20,000 and expenses.
        {¶ 2} A custody dispute followed the birth of the triplets. In Ohio, J.F.
sued D.B. for breach of contract, and both sides moved for summary judgment.
In granting summary judgment for D.B. and her husband, the trial court
concluded that the provisions of the surrogacy contract that require D.B. to
relinquish parental rights and allow J.F. to recoup child-support payments from
D.B. if she is awarded custody violate Ohio’s public policy and cannot be
enforced. The court of appeals reversed, concluding that nothing in the laws of
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Ohio prohibits gestational-surrogacy contracts or enforcing the terms of the
contract against D.B. and her husband. We accepted D.B.’s discretionary appeal.
       {¶ 3} The sole issue before us is whether the contract entered into by
appellants and J.F., in which D.B. agreed to be a gestational surrogate, is contrary
to the public policy of Ohio.
       {¶ 4} This court has had little occasion to discuss surrogacy contracts. In
In re T.R. (1990), 52 Ohio St.3d 6, 556 N.E.2d 439, we considered factors in
favor of and against a public trial in a case involving a surrogacy contract. One of
the factors in favor of a public trial was the opportunity “to study the potential
pitfalls of surrogacy contracts.” Id. at 20, 556 N.E.2d 439. We also stated that the
“problems associated with surrogate parenting and the custody and dependency
actions which may accompany agreements such as the one in the case at bar are of
significant public interest. Access to the courts can promote informed public
discussion on these matters.” Id. at 26, 556 N.E.2d 439. These statements are
indicative of a lack of a declared public policy for or against surrogacy contracts.
Furthermore, as far as we can tell, neither the General Assembly nor any other
governmental body in Ohio has ever enunciated a public policy concerning
gestational surrogates.   See R.C. 3111.89, describing the scope of artificial-
insemination provisions, which frankly states, “These sections do not deal * * *
with surrogate motherhood.” See also Loc.R. 75.1(C)(6) of the Court of Common
Pleas of Hamilton County, Probate Division (“All surrogacy adoptions shall be
treated as non-relative adoptions”) and Loc.R. 83.1(H) of the Court of Common
Pleas of Montgomery County, Probate Division (“All surrogate adoptions shall be
treated as non-relative adoptions unless the surrogate mother is a relative of the
adopting parent or parents”).
       {¶ 5} A written contract defining the rights and obligations of the parties
seems an appropriate way to enter into surrogacy agreement.          If the parties
understand their contract rights, requiring them to honor the contract they entered




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into is manifestly right and just. Even so, the “[l]iberty of contract is not an
absolute and unlimited right, but upon the contrary is always subservient to the
public welfare.” Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Kinney
(1916), 95 Ohio St. 64, 115 N.E. 505, paragraph one of the syllabus.
Furthermore, “[t]he public welfare is safeguarded, not only by Constitutions,
statutes, and judicial decisions, but by sound and substantial public policies
underlying all of them.” Id. at paragraph two of the syllabus. D.B. cites many
statutes and cases to support her position that the public policy of Ohio is
undermined by the contract that she and J.F. entered into and, therefore, that that
contract is unenforceable. See, e.g., R.C. 5103.17, which prohibits anyone from
offering “inducements to parents to part with their offspring,” and R.C. 3107.08,
3107.081, 3107.084, and 3107.10, all of which relate to adoption. See also Doe v.
Atty. Gen. (1992), 194 Mich.App. 432, 487 N.W.2d 484; In re Baby M. (1988),
109 N.J. 396, 537 A.2d 1227; Belsito v. Clark (1994), 67 Ohio Misc.2d 54, 644
N.E.2d 760.
       {¶ 6} Neither these citations nor the many others included in D.B.’s brief
and argument convince us that Ohio has a public policy concerning gestational
surrogacy. We conclude, therefore, that Ohio does not have an articulated public
policy against gestational-surrogacy contracts. Consequently, no public policy is
violated when a gestational-surrogacy contract is entered into, even when one of
the provisions requires the gestational surrogate not to assert parental rights
regarding children she bears that are of another woman’s artificially inseminated
egg. We affirm the judgment of the court of appeals on this issue.
       {¶ 7} Though it is not relevant to this case, we would be remiss to leave
unstated the obvious fact that a gestational surrogate, whose pregnancy does not
involve her own egg, may have a different legal position from a traditional
surrogate, whose pregnancy does involve her own egg.          This case does not




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involve, and we draw no conclusions about, traditional surrogates and Ohio’s
public policy concerning them.
       {¶ 8} The court of appeals also found that “Mr. and Mrs. [B.] breached
the contract,” and it assessed some damages and remanded the case for a
determination of attorney fees and other expenses. Although the record appears
to provide support for the court of appeals’ finding, neither we nor the court of
appeals should determine breach and damages, because those issues were not
briefed at the court of appeals. See Ins. Co. of N. Am. v. Automatic Sprinkler
Corp. of Am. (1981), 67 Ohio St.2d 91, 98, 21 O.O.3d 58, 423 N.E.2d 151. We
therefore reverse the court of appeals’ finding of breach of contract and
assessment of damages. Accordingly, we affirm in part and reverse in part the
judgment and remand the cause to the trial court to determine whether a breach of
the agreement occurred and, if so, to determine damages.
                                                          Judgment affirmed in part
                                                                and reversed in part,
                                                                and cause remanded.
       MOYER, C.J., and LUNDBERG STRATTON and O’CONNOR, JJ., concur.
       O’DONNELL, LANZINGER, and CUPP, JJ., dissent.
                               __________________
       CUPP, J., dissenting.
       {¶ 9} I must respectfully dissent. I believe that the surrogacy contract
entered into by the parties in this case is, as a whole, contrary to public policy and
void. Consequently, its provisions, including the provisions regarding attorney
fees and the surrogate’s “services” fee, are unenforceable.
       {¶ 10} In the majority’s view, the contract is valid because Ohio does not
expressly prohibit the practice of gestational surrogacy. But the issue presented
encompasses a scope broader than simply whether any Ohio statute specifically
and expressly bans gestational surrogacy. The real issue is whether the essential




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nature of the contract, drawn from the import of its provisions, runs contrary to
the established public policy of this state and, thereby, renders the contract
unenforceable.
        {¶ 11} It has long been an established principle of law that the freedom of
contract is not unlimited and that parties may not enter into a contract that is in
violation of established law or public policy. Pittsburgh, Cincinnati, Chicago &
St. Louis Ry. Co. v. Cox (1896), 55 Ohio St. 497, 515, 45 N.E. 641; Pittsburgh,
Cincinnati, Chicago & St. Louis Ry. Co. v. Kinney (1916), 95 Ohio St. 64, 68, 115
N.E. 505; Gugle v. Loeser (1944), 143 Ohio St. 362, 367, 28 O.O. 318, 55 N.E.2d
580, citing Twin City Pipe Line Co. v. Harding Glass Co. (1931), 283 U.S. 353,
356, 51 S.Ct. 476, 75 L.Ed. 1112. See also 17 Ohio Jurisprudence 3d (2001) 428,
Section 79; Restatement of the Law 2d, Contracts (1981) 15, Section 179.
Further, while we have noted that public policy is difficult to define with
accuracy, Kinney at 67, 115 N.E. 505, we have acknowledged that it is the
cornerstone – the foundation – of all Constitutions, statutes, and judicial
decisions. Id. at 69, 115 N.E. 505. Thus, such policy must necessarily govern the
proper resolution of this case.
        {¶ 12} In reviewing the various public policies attendant to the present
case, I conclude that the contract is contrary to public policies safeguarding
children. The well-established policy of this state is that on matters of child
custody and parental rights, the child is entitled to the protection of judicial
oversight. This policy is manifested in numerous statutes and court rules. 1 One
specifically applicable to this case is R.C. 5103.17, which prohibits any person


1. While many state laws are aimed at protecting children, many of the same provisions afford
significant procedural safeguards aimed at protecting the fundamental rights of parents. See
generally Troxel v. Granville (2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (parents have a
fundamental right to the care, custody, and control of their children); In re C.F., 113 Ohio St.3d
73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28. Thus, Ohio law provides safeguards to ensure that the
rights of both children and parents are adjudicated fairly when those rights are in dispute.




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from offering “inducements to parents to part with their offspring.” The policy is
further evidenced by R.C. 3107.055, which governs the accounting of expenses
incurred in adoption proceedings.               Because payment for the termination of
parental rights is not one of the permitted expenses, it is prohibited.                          R.C.
3107.055(C). Thus, Ohio law evidences a public policy prohibiting the surrender
of parental rights for payment.              Although the majority concludes that these
statutes do not prohibit the contract at issue in this case, I respectfully disagree.
         {¶ 13} The essence of this purported contract is an agreement among
unrelated persons for the creation of a child for the payment of money.2 The
contract document requires the surrogate mother and the egg donor3 to terminate
any parental rights they may have to the resulting child, and should they fail to do
so, they must return the money paid to them by J.F. to produce the child.
Although the contract refers to the payment of money by J.F. to the egg donor and
to the surrogate mother for their “services,” and not for their consent to adoption
of the child or for the termination of any parental rights to the child, it is
impossible to so precisely separate the conduct of the parties and the object of the
payment of the money. The result of the contractual arrangement violates clearly
stated public policy.
         {¶ 14} J.F. argues that this provision of the contract is a nullity because
the surrogate mother did not contribute any genetic materials to the children and,
therefore, would not have any parental rights to assert. However, whether the
surrogate mother would be considered a parent under Ohio law is not, in my view,
a settled legal issue. See, e.g., R.C. 3111.02(A). Moreover, the egg donor did
contribute genetic material to the children and, by the same provision of the
contract, she is also required to forgo parental rights. For J.F.’s argument in this

2. In fact, as the majority opinion notes, three children were born as a result of the transaction.

3. Although the contract refers to J.R. throughout its text as the egg “donor,” she was paid $2,500
for the harvesting of her ovum.




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                                 January Term, 2007




regard to be valid, it would be necessary to legally declare that the children do not
have a mother. Such a position is untenable.
        {¶ 15} It is also the established public policy of this state that a parent
must provide for his or her child financially. R.C. 3103.031 imposes a duty on a
parent to provide for a child’s needs. To that end, R.C. Chapters 3115 through
3127 provide an extensive framework for the enforcement of that obligation.
Because this obligation is imposed by law, “[a] father cannot, by contract, escape
his responsibility for adequate support of a minor child; and a mother cannot
barter away the child’s right to such support.” Byrd v. Byrd (1969), 20 Ohio
App.2d 183, 49 O.O.2d 248, 252 N.E.2d 644, paragraph one of the syllabus; See
also Lowman v. Lowman (1956), 166 Ohio St. 1, 8, 1 O.O.2d 152, 139 N.E.2d 1
(no agreement could affect the obligations of either parent to support the child).
In this case, the contract purports to indemnify J.F. for any support obligations
that a court may order if custody is awarded to the egg donor or to the surrogate
mother. Such a provision is in violation of the expressed public policy and
established law of this state.
        {¶ 16} To be clear, there is no evidence of improper motive or illicit
purpose by any of the parties involved in this matter. It is equally clear, however,
that each of the parties to the purported contract is acting out of self-interest,
whether for genetic perpetuation or for financial gain. J.F.’s desire to have
children of his own origin is clear. The egg donor in this case was paid $2,500 for
her role, and the surrogate mother and her husband were paid $20,000 for their
contributions. The effect of the majority’s holding would permit parties to such a
pact to override and to write out the state’s traditional oversight role.       This
oversight role has developed over a long time in response to the experience of
society, and it exists to ensure the protection and welfare of children, including
children born in consequence of gestational surrogacy arrangements.




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         {¶ 17} Enforcing this contract, which is no less than a contract for the
creation of a child, is likely to open Ohio to being an interstate, and perhaps
international, marketplace for gestational surrogacy. Although the genetic father,
J.F., is a resident of Ohio, the egg donor is a resident of Texas; the surrogate
within whom the fertilized egg was implanted and developed, D.B., is a resident
of Pennsylvania; and the organization that brokered the transaction is an Indiana
corporation.      Without comprehensive rules of engagement for such activity,
preferably prescribed by the legislature,4 it is not difficult to imagine a developing
“marketplace” for multiparty, multistate child-production contracts. By 2003, at
least six states and the District of Columbia had banned the practice by legislative
action. Plant, With a Little Help from My Friends: The Intersection of the
Gestational Carrier Surrogacy Agreement, Legislative Inaction, & Med.
Advancement (2003), 54 Ala.L.Rev. 639, 650.
         {¶ 18} In light of the state’s general framework of child-protection laws
and careful judicial oversight over such matters, this court should not be an
unwitting instrument to opening the door of this state to such unregulated
commercial enterprise.
                                           Conclusion
         {¶ 19} I wish to be clear that I do not question the sincerity of J.F.’s desire
to have children. The desire to have and to raise children is born of a basic and
noble human desire and instinct. While on one hand, as appellee asserts, this case
is about recovering the money expended in the arrangement and the attorney fees
incurred in its enforcement, on the other hand, this case is not simply about the
money. A public policy much more important than money is involved here: the
conception and nurturing of children is not just another commercial transaction.
         {¶ 20} I would reverse the judgment of the court of appeals.


4. See, e.g., R.C. 3111.88 through 3111.97, related to nonspousal artificial insemination.




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       O’DONNELL and LANZINGER, JJ., concur in the foregoing opinion.
                            __________________
       Richard E. Dobbins and Terence E. Scanlon, for appellee.
       Hanna, Campbell & Powell, L.L.P., Douglas N. Godshall, and R. Brian
Borla; and McCarthy, Martone & Peasley and Joseph P. Martone, for appellants.
                          ______________________




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