116 Ohio St. 3d 363, 879 N.E.2d 740 (2007)
Eggs from a nonparty donor were artificially inseminated with semen from appellee J.F. and implanted in appellant D.B.1 D.B. subsequently gave birth to triplets.2 The triplets live with their biological father.3 Prior to these events, J.F., D.B., D.B.’s husband, and the egg donor had executed a gestational-surrogacy contract.4 The agreement provides that D.B. will not attempt to form a parent-child relationship with any child conceived pursuant to the contract and will institute proceedings to terminate her parental rights upon the birth of the children.5 In return, J.F. agreed to pay D.B. $20,000 and expenses.6
A custody dispute followed the birth of the triplets.7 In Ohio, J.F. sued D.B. for breach of contract, and both sides moved for summary judgment.8 In granting summary judgment for D.B. and her husband, the trial court concluded that the provisions of the surrogacy contract that require D.B. to relinquish parental rights and allow J.F. to recoup child-support payments from D.B. if she is awarded custody violate Ohio’s public policy and cannot be enforced.9
The court of appeals reversed, concluding that nothing in the laws of Ohio prohibits gestational-surrogacy contracts or enforcing the terms of the contract against D.B. and her husband.10 The Supreme Court of Ohio accepted D.B.’s discretionary appeal.11
Whether the contract entered into by the parties, in which D.B. agreed to be a gestational surrogate, is contrary to the public policy of Ohio?12
No.1516 This court has had little occasion to discuss surrogacy contracts.17 The statements in In re T.R. are indicative of a lack of a declared public policy for or against surrogacy contracts.18 Furthermore, neither the General Assembly nor any other governmental body in Ohio has ever enunciated a public policy concerning gestational surrogates.19 The citations to statutes such as R.C. 5103.17 and adoption provisions and to cases from other states do not convince the court that Ohio has a public policy concerning gestational surrogacy.20
Consequently, no public policy is violated when a gestational-surrogacy contract is entered into, even when one of the provisions requires the gestational surrogate not to assert parental rights regarding children she bears that are of another woman's artificially inseminated egg.21
The gestational-surrogacy contract is not contrary to the public policy of Ohio and is enforceable.22
Related opinions on this issue
Joined by O’donnell And Lanzinger, Jj.
Justice Cupp dissents because the surrogacy contract as a whole is contrary to public policy and void.23 The essential nature of the contract runs contrary to established public policy safeguarding children.24 The contract violates the policy manifested in R.C. 5103.17 prohibiting inducements to parents to part with their offspring.25
It also violates R.C. 3107.055 prohibiting payment for the termination of parental rights.26 The contract's indemnification provision violates the public policy that a parent must provide for his or her child financially.27 A parent cannot by contract escape responsibility for adequate support of a minor child.28
Enforcing the contract would permit parties to override the state's traditional oversight role developed to ensure the protection and welfare of children.29
Whether the court of appeals properly determined that Mr. and Mrs. B. breached the contract and assessed damages?30
An appellate court should not determine issues of breach and damages when those issues were not briefed by the parties at the court of appeals.31
No. Although the record appears to provide support for the court of appeals' finding that Mr. and Mrs. B. breached the contract, the issues of breach and damages were not briefed at the court of appeals.32 Therefore neither this court nor the court of appeals should determine breach and damages.33 Accordingly, the court of appeals' finding of breach of contract and assessment of damages is reversed and the cause is remanded to the trial court to determine whether a breach of the agreement occurred and, if so, to determine damages.34
The court of appeals' finding of breach and assessment of damages is reversed and the cause is remanded to the trial court.35