The Ohio Supreme Court has handed down an important ruling on the right (or lack thereof) of surrogate mothers. Danielle Bimber was accused of breaking her surrogacy contract with James Flynn and his partner Eileen Donich, when she decided to keep the triplets conceived with Flynn’s sperm and Donich’s implanted egg.
Flynn is a Cleveland State University math professor James Flynn who joined with Donich to have the child. Notably, Bimber was a pure surrogate — not contributing her own egg but merely bringing the baby to term. They triplets were born in 2003.
In a close 4-3 decision, the Supreme Court ruled against Donich who argued that she was the legal parent and Ohio law does not allow the contractual waiver of such rights. The Court found that the law was silent on the question and that the contract would control. It put considerable weight on the fact that it was not Bimber’s egg. Bimber, who is found Texas, was given $2,500 for the “services.”
Justice Paul E. Pfeifer, writing for the court majority, noted “No public policy is violated when a gestational-surrogacy contract is entered into, even when one of the provisions requires the gestational surrogate to not assert parental rights regarding children she bears that are of another woman’s artificially inseminated egg.”
The question may now be one of damages under tort and contract law. Bimber, 33, now living in Corry, Pa., raised the children for their first 2 1/2 years until a Pennsylvania appellate court ordered her to surrender them in April 2006. Remarkably, Flynn was paying support despite her refusal to turn over the children.
Flynn is demanding wover $48,000 he paid in child support plus, according to Bimber, $300,000 in legal fees and other expenses
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