Surrogate Mother May Have Visitation Rights

NASHVILLE (CN) - A surrogate who changed her mind and wanted to keep the baby is still a legal parent and may have visitation rights, the Tennessee Supreme Court ruled.

The intended parents are an Italian citizens who were unable to have children and turned to an American surrogacy to connect them with a surrogate in Tennessee. The couple signed a contract with the surrogate in July 2010 in which the surrogate agreed to terminate all of her parental rights.

She became pregnant in April 2011 and the client couple paid about $73,000 in expenses related to the pregnancy, according to the ruling.

Two months before the baby was born, the surrogate signed a joint petition in Davidson County Juvenile Court, further clarifying that she did not intend to be the child's parent A juvenile magistrate issued a consent order in December 2011 forever terminating any parental rights the surrogate and her husband might claim.

The baby girl was born in January 2012 and the surrogate breastfed the infant for a few days while the intended father also helped care for the newborn.

But less than a week after the child's birth, the surrogate got a new lawyer and filed motions for custody, claiming that the birth did not constitute a "surrogate birth" under state law because the intended parents were not yet married.

A magistrate ordered the surrogate to give up custody of the baby on the same day she filed the motions. The parents were married soon thereafter.

The juvenile court upheld the magistrate denial of the surrogate's motions, and the Tennessee Court of Appeals affirmed.

The Tennessee Supreme Court ruled last week in agreement with the lower courts except for the termination of the surrogate's parental rights, which it vacated. State law does not allow a juvenile court to adjudicate a parental rights termination petition - that falls in the jurisdiction of chancery and circuit courts, according to the ruling.

"Neither the parties nor the juvenile court followed any of the statutory procedures for the termination of parental rights," wrote then-Chief Justice Gary Wade, who has since been replaced by Judge Sharon Lee. "Our determination that the juvenile court lacked any cognizable basis for termination pretermits our consideration of whether the juvenile court had the jurisdictional authority to terminate the surrogate's parental rights."

The court upheld the juvenile court's granting of custody of the child to the father because it established paternity, but it remanded the case to the juvenile court to decide the surrogate's visitation rights and child support.

"Our ruling does not preclude the termination of the parental rights of the surrogate in a future proceeding. Absent a basis for involuntary termination, however, termination may only occur if the surrogate executes a surrender or consents to a petition for adoption," wrote Wade. "Furthermore, unless and until termination of the parental rights of the surrogate occurs, she will retain both the rights and responsibilities associated with legal parenthood."

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