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GESTATIONAL SURROGACY IN OHIO

Gestational Surrogacy is permitted in Ohio by published case law J.F.v.D.B.,879N.E.2d740 (2007), in which the Ohio Supreme Court confirmed that Gestational Surrogacy is not against public policy. Gestational Surrogacy agreements are therefore enforceable in Ohio, but restrictions apply.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes, but results vary by court.  Moreover, in about half of Ohio’s 88 counties, pre-birth orders are granted and in the other half, post-birth orders are granted.
 
Can both Intended Parents be declared the legal parents in a parentage order if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes*
  • Married heterosexual couple using an egg donor or sperm donor: Yes*
  • Unmarried heterosexual couple using own egg and own sperm: Yes*
  • Unmarried heterosexual couple using an egg donor or sperm donor: Yes*
  • Same-sex couple using an egg donor or sperm donor: Yes , if married
  • Single parent using own egg or sperm: Yes

 
*Note:  Results vary by county and judge.
 
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?

  • Married heterosexual couple: Yes, but result varies by county and judge.
  • Unmarried heterosexual couple: Same as above
  • Same-sex couple: If married, yes, but result varies by county and judge.
  • Single parent: Yes, but result varies by county and judge.

 
What are the bases for venue?  The county of the Intended Parents’ residence, the county of the Gestational Carrier’s residence, or the county of the child’s birthplace.
 
Do results vary by venue?  Yes 
 
If yes, are motions to waive venue accepted?  It depends on the judge.
 
Is a hearing required to obtain a pre-birth order? It varies by county and judge, but most counties do not require a hearing. In some counties, the attorney must appear. 
 
Is a pre-birth order possible in Ohio based on a Gestational Carrier’s plan to deliver in Ohio, if no party lives in Ohio?  Varies by county.
 
Will Ohio Vital Records honor a parentage order from another state?  Yes
 
What is the typical time frame to obtain a birth certificate after delivery?  It varies from 1-6 months; however, efforts can be made to expedite the process.

Same-Sex Couples

How are same-sex parents named on the final birth certificate?  Parents may choose Parent/Mother/Father
 
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?  Yes, but it depends on the county. 

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?  Yes 
 
Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Ohio (i.e., neither of the Intended Parents lives in Ohio)?  No, second parent adoptions are not granted in Ohio.
 
If no, will Ohio Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Yes

SECOND PARENT & STEPPARENT ADOPTIONS FOR OHIO RESIDENTS

Will courts in Ohio grant second parent adoptions or stepparent adoptions to heterosexual couples living in Ohio?  Yes
 
Will courts in Ohio grant second parent adoptions or stepparent adoptions to same-sex couples living in Ohio?
  No

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes, but only for a sperm donor. (http://codes.ohio.gov/orc/3111.95)
 
If the statute only refers to sperm donors, is there case law interpreting this statute to provide the same protection in the egg donor context?  Yes, the court in SN v. MB (2010), concluded that neither a sperm donor nor an egg donor were the parents of a child. That decision applies to Franklin County, Ohio. There has been no published case law to establish precedent for other counties in Ohio.
 
There is also an embryo donation statute 3111.97 “Parentage of children resulting from embryo donation” that is written in gender-neutral terms: Both the woman who gives birth to the child resulting from the donated embryo and her spouse (so long as he/she consented) are considered the parents. The embryo donation statute does not cover surrogacy situations.

TRADITIONAL SURROGACY IN KENTUCKY

Traditional Surrogacy is permitted in Ohio because there is no statute or published case law that prohibits it. The Supreme Court did not address Traditional Surrogacy in the J.F.v.D.B decision, cited above, nor have there been any other published cases involving Traditional Surrogacy.  The enforceability of individual Traditional Surrogacy contracts varies by judge and circumstances.  For example, some courts limit Traditional Surrogacy to non-compensated, compassionate arrangements.

State law information provided by the following attorneys practicing Reproductive Law in this state:
 
Ellen Essig
ee@kglaw.com
(513)698-9345
 
Mary Catherine Barrett
barrett@ohioadoptionlaw.com
(440)356-4604

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