1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

4.1.2.  Belsito v. Clark, 644 N.E.Rep.2d 760 (Ohio C.C.P. 1994)

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.