Court: Ohio Court of Appeals; March 14, 2006; Ohio; State Appellate Court
James Flynn appealed the Summit County Court of Common Pleas' decision, which granted summary judgment to Douglas and Danielle Bimber. The court reversed this decision. Flynn entered into a surrogacy contract with the Bimburs and Jennifer Rice, designating him as the "Biological Father" and the Bimburs as the "Surrogate." The contract stipulated that if Flynn died before the children were born, custody would go to Eileen Donich, his fiancée. Three fertilized embryos from Rice were implanted in Mrs. Bimber, who gave birth to triplets on November 19, 2003. Flynn paid the Bimburs $24,000 but they later decided to keep the triplets and the payment, leading to multiple legal disputes.
In a prior Pennsylvania case, the court declared the surrogacy contract void but recognized Flynn as the legal father and Mrs. Bimber as the legal mother, despite neither being genetically related to the triplets, while excluding Rice and Donich from maternal status due to their lack of genetic ties and party status in the lawsuit. The Pennsylvania court's decision did not follow established legal frameworks for determining maternity in gestational surrogacy, which include intent-based, genetic contribution, gestational mother preference, and best interest of the child theories. Consequently, the Bimburs were permitted to seek custody and child support from Flynn.
Egg donor Rice initiated legal action in Ohio, seeking recognition as the legal mother of her children, contesting that Mr. and Mrs. Bimber were the parents. The Summit County Court of Common Pleas ruled that both Flynn (the biological father) and Rice were the parents under Ohio law but declared it lacked jurisdiction over custody matters due to the ongoing jurisdiction of a Pennsylvania court. On appeal, the Ohio court determined it was not obligated to honor the Pennsylvania court's decision, as Rice was not included in that action. The Ohio court upheld the Belsito test, which evaluates parental rights based on genetics and any relinquishment of those rights, establishing it as the standard for gestational surrogacy in Ohio.
In a related Pennsylvania case, the court awarded primary custody to the Bimbers and mandated child support from Flynn, despite concerns regarding the legal analysis used, particularly given the presumption that a child born during a marriage is the husband’s child. In Ohio, this presumption is strong, disallowing genetic tests to challenge paternity in such cases, while in Pennsylvania, it is even more robust when the mother, child, and husband live together as a family. Notably, Mrs. Bimber was married to Douglas Bimber, and there was no physical relationship between Flynn and Mrs. Bimber; the embryos were created through medical procedures, leading to complications in establishing a parental relationship as recognized by the Pennsylvania court, which even required Flynn to attend counseling with Mrs. Bimber.
Mrs. Bimber and her husband have undergone necessary training and testing for caring for their triplets and three additional children at home. The triplets' birth certificates list Douglas Bimber as the surname, indicating that he has assumed parental responsibility, establishing an intact family unit. Pennsylvania and Ohio law presume Mr. Bimber to be the father once Mrs. Bimber is declared the legal mother, while Rice is classified as merely the egg donor and Flynn as the sperm donor. There is a concern about potential Equal Protection violations, as both Flynn and Rice provided genetic material without engaging in sexual intercourse with Mrs. Bimber. Flynn initiated legal action in Ohio to recover payments made to the Bimbers and child support obligations. The Summit County Court of Common Pleas ruled the contract void as contrary to public policy, granting summary judgment to the Bimbers. Flynn appealed, arguing that the court erred by not finding a breach of contract by the Bimbers. He contends that their decision to retain custody of the children constitutes a breach, thus entitling him to reimbursement and holding them responsible for related liabilities. The court concurs with Flynn's assertions.
Appellate courts review summary judgment decisions de novo, favoring the nonmoving party and resolving doubts in their favor. Summary judgment is appropriate when there is no genuine dispute of material fact and reasonable minds can only conclude in favor of the moving party. Courts also conduct de novo reviews for contract interpretation, preferring interpretations that maintain the contract's viability rather than those that render performance illegal or impossible.
In this case, Mr. and Mrs. Bimber breached their contract by attempting to form a parent-child relationship with the children and failing to sign necessary adoption documents. Despite not being legally obligated, Mrs. Bimber assumed parental duties, including care and support for the triplets, indicating their breach of contract. The Summit County Common Pleas Court declined to enforce the contract, claiming it violated Ohio's public policy. However, the concept of surrogacy has not been found to contravene Ohio's public policy, which is defined by the legislature. The Ohio legislature has not prohibited surrogacy and recognizes it without specific regulation.
The Summit County Common Pleas Court determined that the provisions in question violated Ohio's public policy against private agreements relinquishing parental rights, as established under R.C. 3107.10. At the time of contract formation and breach, neither Mr. nor Mrs. Bimber had established parental rights under Ohio law. The contract, which they both signed, contained a choice-of-law provision stipulating governance by Ohio law; such provisions are generally enforceable. Under Ohio law, genetic providers are recognized as the natural parents unless they waive their rights. In this case, Flynn and Rice, who provided the genetic material, were deemed the legal parents, while the Bimbers were considered disinterested third parties with no parental rights to contract away. The Bimbers later gained custody in Pennsylvania, but this did not retroactively confer parental status at the time of the contract. Although a Pennsylvania court designated Mrs. Bimber as the legal mother, Mr. Bimber was not recognized as the legal father, confirming he holds no parental rights.
The surrogacy contract was deemed not in violation of public policy since the Bimbers did not contract away any parental rights. The contract also included specific provisions for remedies in case of breach, allowing Flynn to terminate the contract and seek restitution for expenses and attorney fees if the Bimbers breached it. Consequently, as the Bimbers breached the contract and the court found the contract enforceable, they are liable for restitution of funds paid by Flynn and for attorney fees, with amounts to be determined by the common pleas court on remand.
The Summit County Common Pleas Court found that the indemnification provision in the child-support contract violated Ohio public policy, which prohibits parents from waiving their child support obligations. The trial court relied on precedents where parties in marital relationships attempted to evade child support, but noted that Flynn was never married to Mrs. Bimber and had no biological connection to her children. Thus, those cases were deemed inapplicable. The contract included a provision anticipating that Mr. and Mrs. Bimber might seek custody, stating that if they did, Flynn would be indemnified for any child support or pregnancy expenses ordered by the court. This provision does not negate Flynn's obligation; instead, it acknowledges that if custody is awarded to the Bimbers, they become the legal parents, and Flynn would be recognized only as a sperm donor, which under Ohio law does not impose a support obligation on him.
As a result, the court ruled that the indemnification provision does not violate public policy, determined that Mr. and Mrs. Bimber breached the contract, and found it enforceable. Flynn is entitled to reimbursement of $20,000 plus expenses and any court-ordered child support payments he has made to the Bimbers. Additionally, he may recover attorney fees if he can substantiate them. The appellate court reversed the lower court's decision and remanded for further proceedings, clarifying that this ruling does not address the parental rights at issue in a related Pennsylvania case.
