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In both Johnson v. Calvert and Belsito v. Clark,
statutory provisions established the birth mother as the legal
mother of a child, irrespective of whether she was related to the
child, or whether she intended to be its parent. In Johnson,
a dispute between an unrelated surrogate, but birth mother, and
a genetic mother, was resolved in favor of the genetic mother who
originally intended to raise the child. The court rejected
the gestational test, instead adopting an “intent to procreate” test
to determine who will be classified as the legal mother of a child
given birth to by a surrogate mother. Under this test, the
woman who intended, and arranged prior to conception, to be the “mother” of
the child, is for legal purposes the natural mother of the child,
even if she is not the child’s birth or gestational mother.
In Belsito, the court choose yet another approach. Passing
over both the gestational and intent to procreate tests, the court
choose the “genetic test” as the prime determinant
for legal parenthood. In this analysis, the issue of parentage
is resolved by who is related to the child. According to
this test, Michael H. in Michael H. v. Gerald D. would
have been the legal father of little Vicky. The genetic test
makes the most sense from the perspective of natural selection. Why
should an organism be obligated to invest in a progeny with whom
s/he shares no genes? An individual’s goal according
to natural selection is to disperse as many genes as possible into
the population gene pool. To achieve it, s/he is willing
to spend considerable valuable resources on genetically-related
offspring. The genetic test codifies this natural principle,
obligating a caregiver the expensive task of raising a child only
when the two are related.
Progeny may favor the genetic test, as well. It has been
reported that stepchildren are more likely to be abused and killed
than children living with their biological parents. Daly
and Wilson, Ethology and Sociobiology, 6:197-210, 1985;
Daly and Wilson, Ann. Zool. Fennici., 38:287-296, 2001. In
explaining their results, the researchers proposed that natural
selection has shaped the human psyche, creating a specialized psychological
mechanism (“child-specific love”) that makes the efforts
of caregiving tolerable, and even rewarding. Genetic children
evoke this mechanism more deeply than stepchildren, apparently
because they are biologically related and therefore contribute
to the parents’ genetic fitness. As consequence,
the researchers proposed that, when angered by a stepchild’s
behavior, a stepparent might react more strongly and violently,
occasionally resulting in abuse and death. Not all scientists
accept this explanation or the data behind it. Temrin et
al., Proc. Roy. Soc. Lond. B 267:943-945, 2000. Even
if the data is true about abusive stepparents, an alternative explanation
is that bonding mechanisms that inhibit kin from abusing each other
develop only when stimulated very early in life.
Court of Common Pleas of Ohio, Summit County, Probate
Division
67 Ohio Misc. 2d 54; 644 N.E.2d 760; 1994 Ohio
Misc. LEXIS 63
November 14, 1994, Decided
OPINION: W.F. SPICER, Judge.
FINDINGS OF FACT
Plaintiffs, Anthony and Shelly Belsito, were married September
26, 1992. They ecided they wanted a large family. Unfortunately,
approximately one month prior to their marriage, Shelly had to
undergo a hysterectomy as a result of recently discovered cervical
cancer. Her physician had to remove her uterus, but was able to
save her ovaries so that she would continue to produce eggs.
Carol S. Clark is Shelly's younger sister. Around the same time
as Shelly's hysterectomy, Carol gave birth to her third child.
Carol knew how much having a family meant to Shelly and Tom so,
at that time, Carol told Shelly that, if she could, she would carry
Shelly and Tony's baby for them.
In October 1993, Shelly and Tony were accepted into the University
Hospitals' program for in vitro fertilization, Shelly and Tom as
the genetic parents and Carol as the surrogate host. Carol was
to receive no compensation for her role as a surrogate for Shelly
and Tony's baby. Carol testified that she planned to be no more
than an aunt to the child. …
… Shelly, Tony, and Carol signed separate consent forms
to participate in the program. Within these documents, the parties
consented to their status within the program. The consent form
signed by Carol Clark described her as a "carrier." The
consent form signed by Shelly and Tony designated them as the "mother" and "father" of
the child. …
In preparing for Nicholas's birth, Shelly spoke with Akron City
Hospital regarding the birth certificate. She was told that, according
to Ohio law, the woman who gave birth to the child will be listed
on the birth certificate as the child's mother. Further, she was
told that because Carol, the surrogate, and Tony, the genetic and
biological father, are not married, the child will be considered
illegitimate, and will be listed on his birth records as "Baby
Boy Clark" and not as "Baby Boy Belsito."
As a result of that information, Anthony and Shelly Belsito filed
a complaint for declaratory judgment with the court on September
14, 1994. A hearing was held on September 27, 1994. From that declaratory
judgment and the hearing, the Belsitos have requested this court
to declare that it is unnecessary for them to adopt the child now
carried by Carol Clark. They contend that they are the genetic
and natural parents of that child and are therefore entitled to
be recognized as having the legal status of parents. In addition,
they have requested that the court order the preparer of the birth
certificate to reflect the legitimate status of the child and the
Belsitos' status as the legal and natural parents of the child.
CONCLUSIONS OF LAW
The central question of the declaratory judgment action before
the court is, who is to assume the legal status of natural parents
of the unborn child carried by Carol S. Clark?
Under the foregoing findings of fact, the court must conclude
that Carol S. Clark is the gestational surrogate, and the genetic
makeup of the child she carries has been determined by the egg
and the sperm of Shelly Belsito and Anthony Belsito. The court
is of the opinion that the law requires that, because Shelly Belsito
and Anthony Belsito provided the child with its genetics, they
must be designated as the legal and natural parents.
… In Johnson v. Calvert, the facts are very similar to
this case, with a married couple supplying the egg and the sperm
and a surrogate agreeing to carry and deliver the child. The difference
is that the surrogate in Johnson was not related to the genetic
providers, and was to be compensated for the surrogacy. A dispute
arose over the compensation, and the surrogate claimed to be the
parent. …
The court in Johnson looked for the intent to procreate and to
raise the child, in order to identify the natural mother. Since
the genetic mother in Johnson intended to procreate, she was the
natural parent. The Johnson court discarded both genetics and birth
as the primary means of identifying the natural maternal parent,
and replaced both with a test that involves intent of the parties.
In a somewhat similar case, a New York court of appeals determined
the gestational surrogate to be the natural mother based on the
Johnson precedent of intent to procreate. McDonald v. McDonald
(1994), 196 A.D.2d 7, 608 N.Y.S.2d 477. (In McDonald, the gestational
surrogate received the egg from an anonymous donor; her husband
provided the sperm.) Under the Johnson test, either the gestational
surrogate or the genetic parents could be recognized as the natural
and legal parents, depending on which party intended to procreate
and raise the child.
Since both cases emanate from outside the appellate jurisdiction
that binds this court, they can only be considered as persuasive
and not binding. In light of Ohio law, this court finds neither
case to be persuasive, for the following three important reasons:
(1) the difficulty in applying the Johnson intent test; (2) public
policy; and (3) Johnson's failure to recognize and emphasize the
genetic provider's right to consent to procreation and to surrender
potential parental rights.
Intent can be difficult to prove. Even when the parties have a
written agreement, disagreements as to intent can arise. In addition,
in certain fact patterns when intent is clear, the Johnson test
of intent to procreate and raise the child may bring about unacceptable
results. As an example, who is the natural parent if both a nongenetic-providing
surrogate and the female genetic provider agree that they both
intend to procreate and raise the child? It is apparent that the
Johnson test presents problems when applied.
Nonetheless, ease of application should not be the central focus
in structuring the law of surrogacy. The focus of parentage determination
should be based on public policy. Davis v. Davis (Tenn. 1992),
842 S.W.2d 588, 591. Surrogacy questions, such as this court has
before it, involve questions of procreation and parentage. Those
two subjects involve values that are basic to our society. Therefore,
any new configuration of the law in those areas must be reconcilable
with the values as are expressed in enunciated public policy of
present law. The Johnson intent test fails to support, or is in
conflict with, two areas of enunciated public policy.
The first area of conflict is surrender of parental rights by
agreement. It has long been recognized that, as a matter of public
policy, the state will not enforce or encourage private agreements
or contracts to give up parental rights. Ingram, Surrogate Gestator:
A New and Honorable Profession (1993), 76 Marquette L.Rev. 675.
See Matter of Baby M., supra; 1983 Ohio Atty.Gen.Ops. No. 83-001;
R.C. Chapter 3107. See, also, Seymour v. Stotski (1992), 82 Ohio
App.3d 87, 611 N.E.2d 454. Through the intent to procreate, the
Johnson case allows the nongenetic carrier/surrogate to be designated
as the natural mother. The possibility of recognition as a parent
means that a potential right is implicit in any agreement or contract
to act as gestational surrogate. A surrogate who chooses not to
be the natural parent forfeits her right to be considered the natural
and legal parent. Because a fee is often involved in a surrogacy
service, that assent amounts to selling a parental right, and is
in contradiction to the public policy against private contracts
to surrender parental rights.
… The final objection this court has to the Johnson intent-to-procreate
test is its failure to fully recognize the genetic provider as
having the right to choose or to consent. By subordinating the
consent of the genetic-providing individual to the intent to procreate
of the surrogate who intends to keep and raise the child, the Johnson
court has deemphasized what should be considered a basic right.
The procreation of a child, that is, the replication of the unique
genes of an individual, should occur only with the consent of that
individual. See Davis v. Davis, supra, 842 S.W.2d 588. The decision
to allow implantation of another's egg and sperm with the understanding
that the surrogate will raise the resulting child also involves
the surrendering of parental rights. The consent to procreation
and the surrender of the right to raise a child of one's own genes
must be considered, the surrender of basic rights. Id. at 600.
See, also, Skinner v. Oklahoma (1942), 316 U.S. 535, 62 S.Ct. 1110,
86 L.Ed. 1655.
The exercise of fundamental rights should not be taken lightly,
and when the choice is made to exercise or not to exercise those
rights, the law must protect that process of choice. Davis v. Davis,
supra; Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678,
14 L.Ed.2d 510; Cruzan v. Director, Missouri Dept. of Health (1990),
497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224. A minimal protection
for the basic rights of procreation, and the raising of a child
of that procreation, should be to require consent to the surrender
of those rights. At the very inception of the process of fertilization,
the infertile couple who intends to raise the child and those who
would procure the genetics and facilitate implantation should be
put on notice that they must have the consent of the genetic provider.
Such a clearly stated rule would prevent the involuntary use of
an individual's genes. If we are to respect the right of procreation
and parentage when a gestational surrogate is used, one of the
first questions asked must concern consent of the genetic parents.
The Johnson test fails to give that priority, and thus fails to
provide adequate protection of basic rights.
Other than Johnson v. Calvert and McDonald v. McDonald, this court
can find no precedent or basis in the law, by analogy or otherwise,
for establishing a natural parent by intent to procreate. The use
of the intent test is truly a new and questionable frame work upon
which to base the determination of parentage. If a break with traditional
law and public policy, as represented by the Johnson test, is to
be made part of the law of this state, it must be argued that the
legislature, through the scrutiny of public hearings and debate,
is better situated than a judicial proceeding to test the effectiveness
and appropriateness of such a change.
Having rejected the Johnson test, this court must still provide
a framework in which to decide this case. This court believes it
to be more prudent to travel a known path and use existing law
as a legal pattern to fashion new law.
As has been stated, there is abundant precedent for using the
genetics test for identifying a natural parent. For the best interest
of the child and society, there are strong arguments to recognize
the genetic parent as the natural parent. The genetic parent can
guide the child from experience through the strengths and weaknesses
of a common ancestry of genetic traits. Because that test has served
so well, it should remain the primary test for determining the
natural parent, or parents, in nongenetic-providing surrogacy cases.
The test to identify the natural parents should be, "Who
are the genetic parents?" When dealing with a nongenetic-providing
surrogate, such a rule minimizes or avoids the question of the
surrogate selling her right to be determined the natural parent.
Since she has not contributed to the genetics of the child, and
the genetic parent or parents have not waived their rights, she
cannot be determined the natural parent. She cannot sell a right
she does not have. In addition, given the relative certainty of
DNA blood testing, such a foundation or test for parental identity
would be simpler to apply and more certain in results than a Johnson-type
intent test.
However, a genetic test cannot be the only basis for determining
who will assume the status of legal parent. The law must recognize
the reality that the surrogate who did not provide the genetics
of a child may wish to be the legal parent. There is precedent
for recognition of her interest in becoming the legal parent. The
law of parentage recognizes that someone other than the natural
parent may assume the same legal status as the natural parent.
Barger, supra. In other words, the natural parent may relinquish
or consent to give up the rights and duties of parentage. The adoption
laws of all fifty states are prime examples of that rule of law.
R.C. Chapter 3107. A more recent example is the waiver of parental
rights by a non-spousal artificial insemination anonymous donor
under R.C. 3111.30 through 3111.38.
This concept should be recognized and applied to the identification
of the legal parent of a child delivered by a nongenetic-providing
surrogate. It should be applied when the gestational surrogate
wishes to raise the child she has delivered. It must apply only
with consent, or waiver of consent, of the genetic parents. …
Returning to the original query of this case, what identifies
a natural parent when a child is conceived by the use of in vitro
fertilization and the surrogate who delivers the child provides
none of the genetics of that child? The answer of this court is
that the individuals who provide the genes of that child are the
natural parents. However, this court further recognizes that a
second query must be made to determine the legal parents, the individual
or individuals who will raise the child. That question must be
determined by the consent of the genetic parents. If the genetic
providers have not waived their rights and have decided to raise
the child, then they must be recognized as the natural and legal
parents. By formulating the law in this manner, both tests, genetics
and birth, are used in determining parentage. However, they are
no longer equal. The birth test becomes subordinate and secondary
to genetics.
In conclusion, under Ohio law, when a child is delivered by a
gestational surrogate who has been impregnated through the process
of in vitro fertilization, the natural parents of the child shall
be identified by a determination as to which individuals have provided
the genetic imprint for that child. If the individuals who have
been identified as the genetic parents have not relinquished or
waived their rights to assume the legal status of natural parents,
they shall be considered the natural and legal parents of that
child.
Applying the foregoing law to the case at bar, this court has
found that Anthony Belsito and Shelly Belsito are the genetic parents
of the unborn child carried by Carol S. Clark, a gestational surrogate
who was impregnated by in vitro fertilization. This court further
finds that Anthony Belsito and Shelly Belsito have not waived their
rights to be the natural and legal parents of that child. Therefore,
this court must find, as a matter of law, that Anthony Belsito
and Shelly Belsito are the natural and legal parents of the unborn
child now carried by Carol S. Clark.
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