Opinion
No. KNL FA 08-4008415
July 10, 2008
MEMORANDUM OF DECISION ON MOTION FOR ORDER TO SHOW CAUSE
The interesting question posed by this motion is whether the parties to a gestational surrogacy contract can in all cases compel the Department of Public Health to conform a child's birth certificate to the terms of that agreement.
Thus described in the complaint; the actual contract, submitted as Plaintiffs' Exhibit 1, bears the caption "Carrier Agreement."
I. Introduction
The plaintiffs, Michael Oleski and Keith Nagy, sue to have themselves named as legal parents of unborn twins whose due date is in late July of this year. They are represented by counsel in the case.
The defendants Michele Hynes and Russell Hynes, a married couple, joined with the plaintiffs in a gestational surrogacy contract whereby Mrs. Hynes would serve as a surrogate mother to the twins, and deliver them immediately after birth to the plaintiffs who plan to raise the children. These defendants were not represented by counsel in these proceedings, and have not formally appeared although they were present as witnesses at a hearing conducted before this court on June 5, 2008.
While the agreement has her name printed as "Michelle," the court notes that the complaint identifies her as "Michele," and that she signed her name with a single "l."
Plaintiffs named "The State of Connecticut Department of Health" as a defendant, and seek an order compelling the Department ("DPH") to name the plaintiffs as parents of the children on the birth certificate that it will issue following the births. DPH has appeared herein through the office of the Attorney General.
The Court understands this to mean "The Department of Public Health"; see Conn. Gen. Stat. §§ 19a-1 and 19a-1a.
On May 14, the plaintiffs simultaneously filed a writ, summons, and complaint bearing a return date of June 10, and a motion for order to show cause why the court should not validate the gestational surrogacy contract and order DPH to name plaintiffs as legal parents of the children. The latter was set down for a hearing on June 5, before the return date. DPH opposes the relief sought here, and in a brief submitted at the show cause hearing questioned whether this court has subject matter jurisdiction as to the claim made by Mr. Nagy. A full hearing was held at which four witnesses (the individual parties) testified in support of the plaintiffs' claims, and DPH had the opportunity to cross examine those witnesses and to present its own evidence in support of its position.
To date, the individual defendants have not filed an appearance, and no answer or other pleading responsive to the complaint has been filed. The unborn twins, identified as "Baby A" and "Baby B", were not made parties. This court has not appointed a guardian ad litem or attorney to report upon or represent their interests.
II. Findings
The plaintiffs reside in the state of Ohio. Both are mature, responsible adults with professional occupations who are involved in a long-term relationship with each other. This relationship has not been formalized under the law of any state; apparently, it cannot be formalized under the law of their home state. Both desire to be parents of the children expected here, and both profess to be ready, willing, and able to raise those children.
Michele Hynes and Russell Hynes are residents of this state and of this judicial district. They are the parents of two children of their own, whose interests are not (at least directly) affected by the current proceedings. Although they are arrayed adversely to plaintiffs in the naming of the parties, they have the same goal as plaintiffs in seeing the gestational surrogacy contract enforced.
That document, signed by the individual parties on July 27, 2007, is Exhibit 1. It describes Mr. Oleski as the "Natural Parent," Mr. Nagy as the "Adopting Parent," and Mrs. Hynes as the "Carrier." Curiously, the instrument does not name Mr. Hynes as a party and says nothing as to his role in the process it contemplates; however, he did sign the agreement, and in the signature block is listed as "Carrier's Husband."
The agreement provides in essence that Mrs. Hynes is to be a surrogate mother carrying to full term an embryo or embryos implanted within her by a competent medical practitioner. The biological progenitors of the embryos are to be Mr. Oleski, as sperm donor, and an unnamed donor of the eggs. To insure against another fathering a child with Mrs. Hynes, the agreement commits her to a two-month period of celibacy straddling the date of the embryo implantations. Neither Mrs. Hynes nor her husband are to be recognized as the biological parents of these embryos. The status of Mr. Nagy, who is neither linked to the child by genetics nor by his being in a legally-recognized relationship with Mr. Oleski, is intended to be that of a full parent to the children, replacing Mrs. Hynes. The agreement provides that the child or children born of this arrangement are to be turned over to plaintiffs who will raise them without further involvement on the part of the Hyneses.
Whether the identity of the egg donor(s) is actually known or not by any party has not been disclosed to this court, except to the extent of indicating that she was not Mrs. Hynes, and thus is not a party to this action.
The English language does not provide us with a fully satisfactory label to place upon him if the contract's terms are fully performed. Certainly not "mother," which is gender-specific. "Parent," which is gender-neutral, seems to be the only term that fits.
The testimony established that the embryos were implanted within Mrs. Hynes via the fertilization process contemplated by the agreement, and that she did abstain from intercourse during the proscribed period. The fact that the gestational carrier is a married woman raises a rebuttable presumption that the children's father is her husband; Schaffer v. Schaffer, 187 Conn. 224 (1982). However, the uncontradicted medical opinion as to paternity submitted in affidavit form (Exhibit 2), coupled with the lack of access, provide clear and convincing evidence that Mr. Oleski is the biological father of the twins.
The individual parties all testified that they fully understood the obligations and implications of the agreement. The court finds that the individual parties did in fact enter into the agreement freely and voluntarily and that none is under any duress or delusion about its terms and provisions. Now, when the birth of "Baby A" and "Baby B" is imminent, the four are in accord that the agreement should be enforced by this court and the remaining executory provisions allowed to be performed.
III. Legal Discussion
This case presents complex issues such as have arisen in many states over the last ten or fifteen years. Marvelous advances in assisted reproductive technologies ("ART") have joined with rapidly evolving social structures so as to implode many traditional legal assumptions about parentage, custody, and responsibility for children. Such assumptions, formed when the only means of reproduction was that designed by nature, have proven too brittle to fit around the myriad new combinations of sperm and egg, on the one hand, and of married, unmarried, opposite-sex and same-sex partnerships on the other. The pace of all this change has resulted in a crazy quilt of legal theories, statutes, and decisional law.
The plaintiffs do not stand in the same position as they come before this court, although they have not emphasized what differentiates them. Mr. Oleski, as the biological father of the twins, may readily be deemed to have presumptive rights to being declared their legal parent. Mr. Nagy, on the other hand, relies upon the concept of "intentional parenthood." Apparently the original instance in which that term was used by a court was in the California case of Johnson v. Calvert, 851 P.2d 776 (Cal. 1993), a decision resolving a dispute between a genetic mother who had donated an egg to be carried to gestation by a surrogate mother who changed her mind about turning the child over to the donor. The decision held that where genetics and gestation do not coincide in the same person, the parties' intent as to who would be deemed the mother is a useful tie-breaking distinction. Whether that original, limited application ought to be stretched to cover all cases involving a surrogate mother, regardless of the genetic connection of the intended parent, is a matter of intense controversy around the nation. A leading advocate for awarding priority of parentage to intentional parents uses the term: ". . . to describe the person or couple who initially intended to raise the child. Three conditions must be met for persons to be considered intended parents: (1) the intended parents must plan to have a child before the conception of the child; (2) they must take morally permissible measures, not limited to biological procreation, to bring a child into the world; and (3) they must meet certain minimally adequate conditions to be able to raise and care for the child. This last requirement embodies the condition that parents obtain the 'constructive consent of the child.'" Is the concept of "intentional parenthood" viable in this state?
John Lawrence Hill, "What does it Mean to be a 'Parent'?: The Claims of Biology as a Basis for Parental Rights," 66 N.Y.U. L.Rev. 353, 356, fn.12 (1991).
A. Connecticut Cases — Supreme Court
If clearly discernible, of course, Connecticut law is determinative of the issues before this court. Earlier this year, one commentator reported that "[c]urrently, there exists no authoritative case law and statutory regulations concerning the area of [assisted reproductive technology] in Connecticut. For this reason when a Connecticut court encounters a surrogate parenting agreement dispute, the court is limited to either statutory interpretation based on other areas of law or case law that is not on point in order to determine the validity of the . . . agreement."
Christine Bjorkman, "Sitting in Limbo: The Absence of Connecticut Regulation of Surrogate Parenting Agreements and Its Effect on Parties to the Agreement," 21 QuinnipiacProb.L.J. 141 (2008). A good overview of the situation nationally is provided by Adam Plant in "With a Little Help from My Friends: The Intersection of the Gestational Carrier Surrogacy Agreement, Legislative Inaction, and Medical Advancement," 54 Ala. L.Rev. 639 (2002).
In 1998 and 1999, our Supreme Court handed down three so-called "parentage" decisions which must be reckoned with in any decision involving this subject, to wit, Doe v. Doe, 244 Conn. 403 (1998); Doe v. Roe, 246 Conn. 652 (1998), and In re Baby Z., 247 Conn. 474 (1999). While the law has not remained fixed since 1999, these three cases still provide express direction to trial courts which cannot be ignored.
The Court has itself cast doubt upon the continuing vitality of this decision; see In re Joshua S., 260 Conn. 182, 202, fn.17 (2002). However, Joshua questioned the standard which Doe I had articulated as to the parental presumption on the custody aspects of that case, not the portion of the decision relating to how parentage may be created under the laws of this state.
Doe I involved a child carried to term by a surrogate, but raised by a couple of whom the husband was indisputably the child's father, whereas the wife had no genetic or gestational connection to the child. Doe II pitted two married couples against each other over the enforceability of a gestational agreement; pursuant to that agreement, the husband of one couple provided sperm by which the wife of the other couple became a gestational mother, carrying a child which all had stipulated was to be adopted and raised by the first couple. Baby Z. dealt with the right of a parent living in a same-sex relationship to have her child adopted by her partner. While much can be said of each case and its progeny, certain principles may be distilled from them which have not yet been altered:
1. Connecticut does not recognize "equitable parenthood." Doe I, 244 Conn. 403, 443.
Footnotes 45 and 46 of the Doe I decision explicate this point of law and warrant reproduction in full here:
[45] The term "equitable parent" was coined by the Michigan Court of Appeals in Atkinson v. Atkinson, 160 Mich.App. 601, 408 N.W.2d 516 (1987). The Michigan court held that a father, who, until it was determined during a divorce proceeding that he was not the biological father of a four year old boy conceived by and born to his wife during the marriage, considered himself to be the child's father, could nonetheless seek custody of the child as his "equitable parent." Id., 608-09. As defined by the Michigan court, that doctrine grants parental status, for purposes of custody in a marital dissolution case, to an adult who is neither a biological nor adoptive parent where (1) the adult and child mutually acknowledge a parent-child relationship, or the adult has cooperated in the development of such a relationship over a period of time, (2) the adult desires to have parental rights, and (3) the adult is willing to take on the responsibility of raising the child. Id.
Similar concepts, although not always using the same terminology, have been employed by other courts. See, e.g., Carter v. Brodrick, 644 P.2d 850, 855 (Alaska 1982) (relationships that affect child "based upon psychological rather than biological parentage" protected through custody); In re Marriage of Gallagher, 539 N.W.2d 479, 481-82 (Iowa 1995) (adopting modified Atkinson test); State in Interest of J.W.F., 799 P.2d 710, 714 (Utah 1990) (stepfather has standing to seek custody under best interest test); In re Marriage of D.L.J. R.R.J. v. R.J., 162 Wis.2d 420, 427-28, 469 N.W.2d 877 (1991) (applying Atkinson test, nonbiological father who fulfilled parental duties granted equitable parent status for custody determination).
[46] . . . even if we were to conclude that our statutes left room for a redefinition of parentage, we are not persuaded that it would be wise to employ the equitable parent doctrine in that fashion. It is true that the doctrine has considerable emotional appeal, because it permits a court, in a particularly compelling case, to conclude that, despite the lack of biological or adoptive ties to the child, the deserving adult nonetheless may be determined to be the child's parent. This appeal may be enhanced in a given case because the best interests of the child, if determined irrespective of the otherwise invalid claim of parentage, may point in that direction. That doctrine, however, would lack the procedural and substantive safeguards provided to the natural parents and the child by the adoption statutes. In addition, the equitable parent doctrine, which necessarily requires an ad hoc, case-by-case determination of parentage after the facts of the case have been determined, would eliminate the significant degree of certainty regarding who is and who is not a child's parent that our jurisprudence supplies.
Consider, for example, the case of a widow who has remarried, to a man whom she considers to be her infant's stepfather. Nonetheless, for the child's well-being, she cooperates in raising the child to consider her husband as the child's father, but formal adoption has not yet occurred. Perhaps the mother is waiting to see how the marriage works out before consenting to the adoption of her child by her husband. When a dissolution action ensues, however, the husband would have a powerful claim under the equitable parent doctrine to parentage of the child, notwithstanding that the mother never consented to his attaining that legal status. Even if the husband were not serious about pressing the claim, he could use it as leverage at the marital dissolution bargaining table.
Another difficulty with the equitable parent doctrine, at least in its most prominent formulation; see footnote 45; is that it leaves the question of parentage to the choice of the purported equitable parent. It is, in our view, a perverse notion of parenthood that makes such a status depend on whether one wants its responsibilities as well as its rights.
244 Conn. 403, 443-45
2. The superior court possesses the authority to construe and enforce compliance with gestational agreements by the parties thereto. Doe II, 246 Conn. 652, 664.
3. Legislatively mandated procedures for termination of parental rights of those parties to an agreement who will not be going forward in life with the child, and of recognizing the role of those who will be, must be complied with and are not avoidable. Baby Z., 247 Conn. 474, passim.
DPH relies almost entirely upon these three cases in urging this court to deny the plaintiffs' motion and to dismiss the case for lack of subject matter jurisdiction. Plaintiffs, in turn, argue that these cases have become obsolete by virtue of actions of the legislature, or are inapplicable as proven by a host of superior court cases which have conferred new status upon gestational agreements.
B. Subsequent Legislation 1. General Statute § 7-48a
This provision, first added to our law in 2001 by Number 01-163 of the 2001 Public Acts, and amended in 2004, 2005, 2007, and again in 2008, now reads as follows:
Filing of birth certificate. Replacement certificate.
On and after January 1, 2002, each birth certificate shall be filed with the name of the birth mother recorded. The DPH of Public Health shall create a replacement certificate in accordance with an order from a court of competent jurisdiction not later than forty-five days after receipt of such order or forty-five days after the birth of the child, whichever is later. Such replacement certificate shall include all information required to be included in a certificate of birth of this state as of the date of the birth. When a certified copy of such certificate of birth is requested by an eligible party, as provided in section 7-51, a copy of the replacement certificate shall be provided. The DPH shall seal the original certificate of birth in accordance with the provisions of subsection (c) of section 19a-42. Immediately after a replacement certificate has been prepared, the DPH shall transmit an exact copy of such certificate to the registrar of vital statistics of the town of birth and to any other registrar as the DPH deems appropriate. The town shall proceed in accordance with the provisions of section 19a-42
The plaintiffs' cause of action here rests heavily upon this statute, and particularly upon its words authorizing DPH to create a replacement certificate in accordance with an order from a court of competent jurisdiction. In their brief filed at the show cause hearing, they argue that both the text and the legislative history of the statute show clear support for the concept of intentional parenthood as reflected in a gestational agreement like that before this court.
General Statutes § 1-2z makes the text of a statute and its relationship to other statutes the first and, if sufficient, the only test of its meaning. "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes." State v. Koczur, 287 Conn. 145, 152 (2008). Through its 2001, 2004, 2005, and 2007 iterations, this statute never uses the words "gestational agreement" or "intended parents." The argument that these concepts were authorized by this statute, in the utter absence of their use within, clearly fails the test of looking to the text of a statute to find the meaning for which it is invoked.
The 2008 amendment, which takes effect October 1, 2008, is expressed in Number 08-184 of the 2008 Public Acts. This act adds the words "If the birth is subject to a gestational agreement . . ." before the second sentence of the statute as cited above. The entire discussion of this amendment in the legislative history of the 2008 act came during the testimony of Commissioner of Health Dr. Robert Galvin before the Public Health Committee on March 3, 2008, when he said
The Department of Public Health supports House Bill 5701. Sections 1 and 2 provide clarification of vital records statutes. The revised language in section 1 makes it clear that General Statute 7-48a pertains to the births that are subject to a gestational agreement. Without this revision it is difficult to interpret this statute.
This court takes no issue with the accuracy of his last sentence, but views the amendment as merely descriptive of the type of court action which might result in a departmental correction, not as reflecting a legislative decision authorizing new substantive rights.
Plaintiffs have quoted portions of the legislative history in support of their contention. "When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." 287 Conn. 145, 153. The General Assembly has considered five bills over the past seven years either in the original enactment or the subsequent modifications of § 7-48a, and the total legislative history runs to several hundred pages in length. The full picture is different from the selected glimpses plaintiffs offer.
That history reveals that in 2001, as the first of these bills was being considered, the question of approving gestational agreements by legislation had been under express consideration by the Assembly. Raised Bill No. 6569 contained a new section outlining the effect of gestational agreements, while still not defining what was meant by the term. For reasons not made clear in the history, however, the subject was entirely removed from consideration upon passage of an amendment which the bill's chief spokesperson explained as follows:
Raised House Bill No. 6569, "An Act Concerning Vital Statistics," contains the following language which was deleted by the amendment cited:
Sec. 27. (NEW) (a) On receipt of a certified copy of an order of a court of competent jurisdiction approving a gestational agreement, the department shall prepare a new birth certificate for the child born of the agreement. The new birth certificate shall include all the information required to be set forth in a certificate of birth of this state as of the date of birth, except that the intended parent or parents under this agreement shall be named as the parent or parents.
(b) Immediately after a new certificate of birth has been prepared, an exact copy of the certificate, together with a copy of the order of the court approving a gestational agreement, shall be electronically or manually transmitted by the department to the registrar of vital statistics of each town in this state in which the birth of the person is recorded. The new birth certificate, the original certificate of birth on file and the copy of the order of the court shall be filed and indexed pursuant to such regulations as the commissioner shall adopt, in accordance with chapter 54 of the general statutes, to carry out the provisions of this section and to prevent access to such records of birth and court order, except as provided in this section. Any person, except the intended parent or child born of the agreement, who discloses any information contained in such records, except as provided in this section, shall be fined not more than five hundred dollars or imprisoned not more than six months, or both.
(c) When a certified copy of the birth certificate of a child born of a gestational agreement is requested by a person authorized to receive such copy pursuant to section 7-51 of the general statutes, as amended by this act, a copy of the new certificate of birth, as prepared by the department in accordance with the applicable provisions of section 19a-42 of the general statutes, as amended by this act, shall be provided. Access to or issuance of a certified copy of the original birth certificate to any person, including the intended parent or parents of the child or the child born of the gestational agreement, if over eighteen years of age, shall be permitted only upon a written order signed by a judge of the probate court for the district in which the gestational agreement was approved, or another court of competent jurisdiction. The original certificate so issued shall be marked with a notation by the issuer that the original certificate of birth has been superseded by a replacement certificate of birth as on file.
This amendment makes a number of technical corrections and changes. It also deals with the language on death certificates and requires that the social security number on those be kept in an administrative section and that is released only to persons with a need to know and it removes the language on gestational agreements and simply substitutes the requirement that the mother on the birth certificate shall be the birth mother unless — except by order of a court of competent jurisdiction.
Remarks of Rep. Eberle, Proc. House of Reps. May 24, 2001, p. 3719 (emphasis added).
Three years later, Number 04-255 of the Public Acts of 2004, captioned "An Act Concerning Funeral Directors and Vital Records," added at section 3 precisely seven words to the 2001 text: "and shall be completed in its entirety." One representative characterized this bill as ". . . in my 8 years in the legislature . . . probably the single most boring bill I've brought out." To be sure, a colloquy between two members of the House of Representatives did elicit a comment that
Representative Feltman, House Proc. May 3, 2004, p. 4452.
. . . a number of years ago I think in 1999 to be exact this legislature changed the birth certificate registration law to permit a court of competency restriction (sic) being the superior court to find parentage in accordance with the biological relationship to a child rather than the birth mother if she wasn't the biological mother.
Remarks of Rep. Sherer, Proc. House of Reps. May 3, 2004, pp. 4456-57. At best, if this accurately described the 2001 act, it suggests that this court could determine a contest between a genetic mother (donor of an egg), and a gestational mother (carrier of the embryo through pregnancy). It provides no support for recognition of "intentional parenthood" in the absence of a biological nexus.
Number 05-272 of the 2005 Public Acts deleted a requirement in the 2001 version that a hospital adhere to orders of a court directing that the birth mother be named on a birth certificate, and transferred that duty to DPH in the form of a replacement certificate. This technical amendment was supported by one legislator's comment that the bill ". . . changes the procedures for amending a birth certificate in the case of a gestational agreement . . .," and by a letter to that effect submitted by a DPH spokesperson. Beyond those random observations, the history provides no further illumination upon the relevance of the original or the amended statute to the topics of gestational agreements or intended parentage.
Representative Sayers, House Proc. June 7, 2005, p. 9220, and Testimony of Wendy Furniss, DPH, before Committee on Public Health, March 21, 2005, p. 2943.
Next, in Number 07-252 of the 2007 Public Acts, at section 50 of an omnibus bill running to almost fifty pages of text, the legislature imposed a forty-five-day deadline upon DPH in which to perform its duty of correcting a birth certificate. None of the legislators or witnesses specifically addressed this portion of the omnibus bill's text at all, and thus again the history is no help in determining what our statutes say as to gestational agreements or intentional parentage.
To accept plaintiffs' argument that § 7-48a as now in effect is clear authority for approval of gestational agreements, therefore, this court would have to overlook an absolute absence of any reference to "gestational agreements" or "intentional parenthood" in the statute they cite, and overlook clear evidence of the legislature's explicit refusal in 2001 to enact legislation authorizing or even recognizing gestational agreements when the subject was on the table. Our Supreme Court has recently admonished us that a trial court interpreting legislation should not be swayed by the errant remarks of a few legislators in subsequent years as definitive interpretations of what the assembly had enacted in a prior term, and should not "ascribe . . . an intent to the legislature generally because of one legislator's retrospective interpretation of the motivation behind the . . . amendment, especially when such an interpretation is not consistent with express statements in the pertinent legislative history." State v. Winer, 286 Conn. 666, 683 (2008).
This court interprets the relevant portion of § 7-48a as requiring the correct name of parents to be reflected on original birth certificates, and as allowing corrections to be made in the form of replacement birth certificates. The legislative history is helpful in reaching this result in that it includes a brief, contemporaneous summary of the act's purposes. This succinct, limited, and prosaic statute, which its proponents have routinely described as "technical," cannot be considered as much more than a "housekeeping" provision. To conclude that it opened a new door upon the arena of assisted reproductive technologies in all of their forms and permutations while using no language to denote the same does not comport with our legislature's instructions as to how courts are to interpret its enactments.
Which reads thus:
AN ACT CONCERNING VITAL RECORDS
SUMMARY: This act makes a number of substantive and technical changes in the statutes on vital records, affecting both the Department of Public Health (DPH) and local registrars of vital statistics. It: (1) specifies that vital records include fetal death certificates in addition to birth, marriage, and death certificates and makes the necessary conforming changes; (2) allows DPH and local registrars to transmit and register vital records electronically and defines terms to address vital records in both electronic and paper format; (3) makes a number of changes concerning birth certificates addressing access, confidentiality, data usage, copies, paternity acknowledgments, name changes, and adoption; (4) allows certain people to access Social Security numbers on marriage licenses and death certificates; (5) allows funeral directors and embalmers licensed in states with reciprocal agreements with Connecticut to undertake a number of activities here; (6) requires DPH to develop uniform procedures concerning vital records and modifies its regulatory authority; (7) clarifies how DPH must administer the state system of registration of births, marriages, deaths, and fetal deaths; (8) standardizes the fees for vital records, including setting the same $2 fee for recording fetal deaths as for other vital records; and (9) eliminates outdated or contradictory provisions. EFFECTIVE DATE: October 1, 2001.
2. General Statute § 45a-724
Section 1-2z also directs that a court's interpretive function include consideration of statutes related in subject matter to that under scrutiny. In 2000, via Number 00-228 of the 2000 Public Acts, the Assembly did enact legislation which is of significance to this case. Described by Senator Donald Williams as the so-called "Baby Z." or "gay adoption" bill, "An Act Concerning the Best Interest of Children in Adoption Matters" authorized a single parent of a child to add his or her partner as an adoptive parent of that child, regardless of gender or marital status. Until this change in our law, the Supreme Court had held in Baby Z., only a "statutory parent" (i.e., the state), a parent married to the prospective adoptive parent, or a guardian of a child proposing adoption by a blood relative were allowed to access the probate process. As Justice Berdon noted in his passionate dissent in that case, the majority's ruling that single parents could not arrange adoption of their offspring by their unmarried partners had not only failed to find a way to allow homosexuals to participate in the adoption of their partner's child, but had cut off the ability of unmarried heterosexuals to do so also.
Senate Proc. May 3, 2000, p. 2448.
247 Conn. 474, 535, fn.5.
The enactment of 00-228 was indisputably a response to that perceived shortcoming. This act, promulgated just a year before Public Act 00-163 and outlining the process for becoming a legal parent in a manner applicable to all unmarried persons, is a "related statute" when plaintiffs cite the later act as the principal basis for their claim to parental status. The 2000 act, which modified § 45a-724 of the general statutes, directs that adoption, via the probate courts, is the route by which these newly-enabled "intended parents" must proceed. In the legislative history of this bill, there are multiple references to the fact that a home study of each prospective adoptive parent will be performed, and that the probate judge would have discretion to consider the best interest of the child. Since these provisions already exist within Chapter 803 (which deals with adoption generally), the placement of the new provisions enabling adoption by unmarried partners within that chapter provides a known format within which their applications can be adjudicated.
E.g., Representative Tulisano commented, "Once the application is made, . . . the report is done, an investigation is done, as is normally done in most adoption cases . . . Part of that report will require a finding that the best interest of the child will be served." House Proc., April 28, 2000, p. 4577.
C. Superior Court Cases
Plaintiffs cite fourteen superior court cases which have ruled upon gestational agreements. The majority of them, including Friend v. Lugo, Superior Court, judicial district of New Haven, Docket No. CV 02 0467901 (2002, Gruendel, J.); Hatzopoulos v. Murray, Superior Court, judicial district of New Haven, Docket No. CV 02 046329 (2002, Gruendel, J.); Velardo v. Murray, Superior Court, judicial district of New Haven, Docket No. FA 04 04805648 (2004, Kenefick, J.); Dicomo v. Hopkins, Superior Court, judicial district of New Haven, Docket No. FA 05 4007885 (2005, Munro, J.); Caird v. Lugo, Superior Court, judicial district of New Haven, Docket No. FA 06 4017776 (2006, Frazzini, J.); Caliendo v. Mariano, Superior Court, judicial district of New Haven, Docket No. FA 07 4023465 (2007, Frazzini, J.); Goad v. Arel, Superior Court, judicial district of New Haven, Docket No. FA 07 4025574 (Frazzini, J.); Wray v. Samuel, Superior Court, judicial district of New Haven, Docket No. FA 07 4024921 (2007, Kenefick, J.); Ajobo v. Heard, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FA 07 4022178 (2007, Owens, J.); Gomer v. Landon, Superior Court, judicial district of Hartford, Docket No. FA 08 4034813 (2008, Epstein, J.); and Calger v. Bailey, Superior Court, judicial district of Fairfield at Stamford, Docket No. FA 08 4023487 (2008, Hudock, J.) are all inapposite. All were cases between biological parents and a gestational carrier and her husband; none involved an "intentional parent" having no biological relationship with the child at issue. Beyond this critical factual distinction, none of these decisions makes any subordinate findings or cites any authority for its conclusions or orders, all are approximately one page in length and practically verbatim copies of each other, and, since none involved participation by the Department of Public Health, all appear to have proceeded to judgment in a non-adversarial atmosphere of cooperation and consent on the part of all involved.
Judge Munro apparently recognized that the propriety of her ordering DPH to amend a birth certificate when the agency was not a party to the proceedings before her might be questioned, and thus she conditioned her order upon an invitation to DPH to intervene and articulate its objections, if any, to the order.
There is one additional case belonging to this set, similar to the others in result but standing apart from them in that it answered a question apparently raised on the court's own motion as to subject matter jurisdiction: De Bernardo v. Gregory, Superior Court, judicial district of Tolland, FA 07 4007658 (2007, Shluger, J.) [ 44 Conn. L. Rptr. 553]. As in the cases in the previous paragraph, the plaintiffs in De Bernardo were the genetic parents of the child involved. DPH appeared and voiced no objection to an order compelling it to name them as parents on the birth certificate, and the case went to judgment on an uncontested basis. As a basis for its jurisdiction to review gestational agreements generally, the court discussed Connecticut statutes, including 7-48a, the Practice Book, those of the above superior court cases which preceded its issuance, Doe I, Doe II, the case law of other states, and the Uniform Parentage Act of 2002. Again, this court regards cases in which the potential candidates for the label of "parent" all have a biological relationship with the child to be of a different sort than the case at bar, and not reliable precedents for deciding this case.
This court has also consulted the Uniform Parentage Act of 2002 in search of guidance as to how to rule in this action.
The Uniform Acts are a project of the National Conference of Commissioners on Uniform State Laws. In 1973, that body prepared a Uniform Parentage Act which has since been adopted by eighteen states and has reportedly been a useful tool for determining questions of parentage; until recently, "questions of parentage" may have swirled around the status of the father of a child, but only rarely as to the mother. That document is entirely silent as to "intentional parentage" or gestational agreements.
In 1988, the Conference released the Uniform Status of Children of Assisted Conception Act, in response to the challenges arising from not merely artificial insemination, but egg donation, gestational carrier arrangements, and the many new forms of reproductive technology hardly imagined in 1973. This Act went practically nowhere, having been adopted only by Virginia and North Dakota — and the latter replaced its provisions dealing with gestational agreements with more limited language not relevant here.
The Uniform Parentage Act of 2000 was an effort to merge the 1973 Act with the 1988 Act, and to thereby make available one statute dealing comprehensively with all aspects of determining parental status. It was superseded by a 2002 version, the major contribution of which is to eliminate the requirement in the 2000 version that any couple seeking to be named parents under a gestational agreement be married. However, in both versions, Article 8, which deals with such agreements, is made optional, to be enacted in the discretion of each of the state legislatures.
At this time, only eight states have enacted the 2000 or 2002 Uniform Parentage Acts. Oklahoma and Washington, having enacted the 2000 version with its restriction to married couples, made no change in their codes to reflect the Commissioners' 2002 revisions. Utah and Texas, in adopting Article 8 of the 2002 draft, inserted a provision that a "man" and a "woman" could be candidates for a declaration of parentage under the gestational agreement provisions of the Act, while Alabama added the requirement that they be married to each other. The states of Delaware, North Dakota, and Wyoming have specifically deleted Article 8.
The foregoing is offered to dispel any notion that the existence of a Uniform Act, however wise its provisions, has inspired much favorable response from state legislators who are actually empowered to write the law. In fact, there is no legislative pronouncement known to this court which approves of "intentional parentage" status being conferred by virtue of a gestational agreement alone upon unmarried individuals who have no biological relationship with a child (although it is conceded that California's statute, Fam. Code §§ 7571 et seq., is sufficiently complex as to permit that inference). Seven states and the District of Columbia make void the enforcement of gestational agreements under all circumstances (Arizona, Ariz. Rev. Stat. Ann. § 25-218; District of Columbia, D.C. Code Ann. § 16-402a; Indiana, Ind. Code Ann. § 31-20-1; Louisiana, La.Rev.Stat. Ann. § 9.2713; Michigan, Mich. Comp. Laws § 722.855; New York, N.Y. Dom. Rel. Law § 121-24; Nebraska, Neb. Rev. Stat. Ann. § 25-21.200; and North Dakota, N.D. Cent. Code § 14-18-05), and three others make them void where any consideration beyond her expenses are paid to the surrogate (Kentucky, Ky. Rev. Stat. Ann. § 199.590.4; Utah, Utah Code Ann. § 76-7-204; and Washington, Wa. Rev. Stat. Ann. § 26.26.230).
Assuming, arguendo, that our state subscribed to the UPA of 2002, this court must further point out that in many ways the gestational agreement in this case would not meet the standards required by the act. For one thing, Mr. Hynes, although he signed the agreement, is not a party thereto and nothing is said within it as to any rights he might have in light of the presumption that a child born to a married woman is issue of her husband. Additionally, one step in court approval of a gestational agreement mandated by the UPA is a judicial determination of the reasonableness of the compensation paid to the surrogate for her services and risks (note that Judge Shluger did address this question in De Bernardo). The agreement submitted here as Exhibit 1 mentions, in Article IX, a "Payment Schedule" appended as Exhibit A; in fact, there is no Exhibit A attached, nor was there any testimony concerning consideration. Whether that is intentional or not is unknown. Finally, it should be noted, Sec. 803(b)(3) of the UPA contains a particularly significant requirement for intended parents which is absent from the gestational agreement under consideration, and it is that they meet the standards of fitness applicable to adopted parents revealed, inter alia, by a home study. Under the act, in other words, mere intent to become a successful parent is insufficient.
Having made these observations, the court emphasizes its understanding that plaintiffs are not claiming that the UPA in any form is the basis for this cause of action.
Plaintiffs also cite Davis v. Kania, 48 Conn.Sup. 141 (2003) [ 35 Conn. L. Rptr. 372], as a case supporting the enforcement of gestational agreements between two persons of the same gender. This case is actually a custody battle between two men each claiming standing to fight for the child involved as a consequence of a California decree recognizing the gestational agreement which they had entered into in happier times. That agreement was a circumstance which led to the dispute that arose here, and the case merely reflects that the agreement was the means by which the respective claims of the contestants had arisen. The case neither established nor undermined the notion of gestational agreements under our state's law.
Two remaining cases, one relied upon by plaintiffs, and one which has come down since the June 5 hearing, are not so readily distinguishable. Plaintiffs cite Vogel v. Kirkbride, Superior Court, judicial district of New Haven, Docket No. FA 02 0471850 (2002, Gruendel, J.), which is only slightly different in its factual origins from that now under consideration. Specifically, that case included as a defendant the donor of the egg with which the gestational carrier was implanted, whereas in this case that person is anonymous. That detail amounts to an insubstantial distinction in light of the holding in the case, which approved the identification of two men as parents of the unborn child and directed that their names be placed on the child's birth certificate. Unfortunately, the decision is of little help to this court, as neither the court's reasoning nor the authorities it relied upon are reflected in the decision. Like the many cases cited above, it appears that the court merely accommodated the various consenting parties in implementing their agreement. DPH was not a party, and thus the issue of whether this outcome comports with Connecticut law was not genuinely litigated.
The more recent decision is Griffiths v. Taylor, Superior Court, judicial district of Waterbury, Docket No. 08 4105629 (2008, Cutsumpas, J.T.R.), in which, over the opposition of the DPH, the court unequivocally approved the claim of two "intentional parents" who had not anchored their claim in any biological connection with the embryo involved. Procedurally, it is similar to the case at bar. Its plaintiffs, Mr. Griffiths and Mr. Naranjo, homosexual partners who attempted to father twins, each donated sperm with which donated ova were fertilized, and both fertilized eggs were then implanted within a single gestational surrogate. The decision refers to only one embryo, and does not make clear what happened to the second. That surviving embryo presumably is the biological offspring of one of the plaintiffs, but which one remains a mystery. The court deemed the identity of the genetic parent to be irrelevant, and sustained the plaintiffs' claim to parentage on the basis of the intent manifested in their agreement. The court held that public policy of this state clearly favors such a hierarchy, and found authority for doing so within § 7-48a and within the common law as developed by the numerous superior court cases cited above, along with two other statutes which deal with paternity, to wit § 46b-160 (authorizing judicial determinations of paternity), and § 46b-172 (authorizing putative fathers to acknowledge paternity).
Judicial decrees of paternity may sometimes enter without genetic testing — for instance, where the named defendant defaults and cannot be located. But if such testing is done and comes back negative, and absent extenuating circumstances such as estoppel or a prior acknowledgement of paternity, great if not conclusive weight is invariably accorded to such evidence. The statute allowing a voluntary acknowledgement of paternity specifically requires that a putative father affirmatively waive his right to genetic testing as he makes his declaration of paternity. This allowance of waiver ought not to be read to mean that a genetic relationship with the child is irrelevant, but rather as a legislative dispensation with a costly and somewhat invasive procedure when the results would nearly always confirm what the parties already know or have reason to suspect is the truth as to parentage.
D. Unresolved Policy Considerations
The manner in which the case law has evolved on this subject leaves unanswered a number of important policy considerations which ought to be weighed in the balance on applications to approve gestational agreements.
1. Where is the child in this debate?
The foremost problem with the manner in which this court has been asked to approve the parties' contract stems from the reality that in a few days when the twins themselves become lives in being and in need of the care of a custodial parent for at least the next eighteen years, the determination of who is the appropriate custodian will already have been made as a function of directing whose names go on the children's birth certificates. By the process employed here, the court is effectively being asked to approve Mrs. Hynes's transfer of the custody of the children to whom she will have given birth to not only their biological father, but also to an individual not related to them except by his untested declaration that he intends to parent them. Professor Hill, in advocating that courts defer to intentional parentage agreements, posits that one criterion of such is that the intended parent obtain "the constructive consent of the child." But how is that consent to be measured? If by the declaration of intention alone, then in fact there is no independent significance to the third of his criteria. Hill responds that ". . . while actual consent by an unborn child is an obvious impossibility, the notion of constructive consent is an accurate metaphorical reflection of the general intuition that parents must meet a minimum condition of fitness." This court believes that our legislature has already acted upon that intuition in requiring, through its enactment of General Statutes § 46b-56(c), that when courts are involved in making custody decisions they must affirmatively find that the future custodial parent possesses such fitness, and that the prospective custodial relationship conforms to our understanding of what is in this child's best interests. Such a finding assures the "constructive consent of the child." That statute lists sixteen broad categories which a court may consider in determining the best interests of a child. If the children here were one day old, and Mrs. Hynes then turning them over to a stranger, no court in the world would approve that transfer solely on the basis of her contract with that third party, and without any evidence as to whether such a transfer accommodated the children's interests.
The logic of this argument, and of the Griffiths holding that intent trumps biology, is such that even if Mr. Oleski also had no biological connection to the children, he as well — or any two persons who are strangers to the child, but for their contract with the surrogate — would be qualified to assume custody with no court finding that such an award conforms to the child's best interests.
Hill, op. cit., at 384.
How courts have addressed the evolution or revolution wrought by assisted reproductive technologies seems to have attracted as many law review articles as there are law reviews. Plaintiffs cite a lengthy and informative article by Richard Storrow which expands upon the work of Professor Hill and other scholars. Noting the myriad directions in which ART has driven the parentage debate, Storrow advocates that courts embrace intentional parenthood as primary among the criteria employed in determining parental identity and consequent custodial rights in particular cases. As he defines it, however, "intentional parenthood" largely overlaps with "functional parenthood"; and "functional parenthood", deemed to be synonymous with "equitable parenthood," is the option which the Doe I decision specifically rejected.
Richard Storrow, "Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage," 53 Hastings L.J. 597 (2002).
Alternatively, and more persuasively, other writers contend that confronting the best interest question ought to be part of the analysis of court-based parentage determinations, and note that the question has been too infrequently discussed in most of the court decisions construing ART agreements. Professor Ilana Hurwitz observes that courts have routinely categorized motherhood according to three paradigms — intention, genetics, and gestation — and then decided parentage cases by an a priori hierarchical ranking process in which the present and future welfare of the child whose entire life is affected by such a decision is never examined. She argues for all such decisions to be made in a context in which "one can settle maternity by shifting focus from the pecking-order of the adult protagonists to the interests of the child." Professor Paula Manning proposes adoption as a medium well suited to facilitate such decisions, as it permits in one setting a resolution of the rights of all putative parents, the child's right to be raised by fit parents, and the child's right to complete information about his genetic identity, including the consequences to her of the medical history of the genetic parents. While this court has jurisdiction to make custody determinations, and while it has authority to direct specific performance of a gestational agreement among the parties thereto, it is well established that the superior court lacks subject matter jurisdiction over adoption and over the process of termination of any rights of the gestational surrogate or her husband which might need to be resolved in a case of this nature.
Ilana Hurwitz, "Collaborative Reproduction: Finding the Child in the Maze of Legal Motherhood," 33 Conn. L.Rev. 127 (2000).
Hurwitz, id., 179.
Paula Manning, "Baby Needs a New Set of Rules: Using Adoption Doctrine to Regulate Embryo Donation," 5 Geo. J. Gender and L. 677 (2004).
2. Jurisprudential Concerns
In addition, the cases have not addressed a cluster of jurisprudential concerns raised by the expansion of our law to permit intentional parentage untethered to either biology or adoption.
Among these is whether a Connecticut judgment rendered on the facts presented here thus far might encounter difficulties with being recognized in other states. The public policy of many of our sister states, as revealed either by legislation or court decisions, may clearly be described as hostile to determinations of parentage on facts such as this case presents. Virginia and Vermont have already clashed over the parentage of a child born to one partner to a Vermont civil union (without a subsequent adoption) after that union dissolved and the biological mother moved to Virginia. There is no reported instance, in contrast, of a birth certificate backed by an adoption decree being rejected in any other state. While the full faith and credit clause may still be robust, the prospect that in the future one route to a desired end may be more problematic than another may be worthy of consideration at this point in the process rather than after the surer alternative has been overlooked.
This standoff ended with a whimper rather than a bang, when Virginia's highest court ruled that its state resident had failed to perfect her appeal from an appellate court order which had overruled a trial court decision declaring Vermont's decree to be unenforceable; Miller-Jenkins v. Miller-Jenkins (June 6, 2008).
Additionally, when dealing with similarly-situated subjects, the law as much as possible ought to strive for consistent treatment of all persons upon whose lives it impacts. Here, we have a rule embodied in statute (§ 45a-724) making it clear that if Mr. Oleski's children were already born, and Mr. Nagy desired to become their parent, he could be permitted to do so, provided that he go through probate court and be subject to its processes to achieve that end. This would be true whether he and the child's biological parent were married to each other, unmarried heterosexuals, or, as in this case, two faithful partners of the same gender. A rule that an individual in Mr. Nagy's circumstance may, by virtue of a pre-conception agreement avoid probate altogether is utterly inconsistent with what the legislature has directed for post-birth parentage decisions. It is anomalous that a step-parent who may have known a child since birth must undertake that precondition to parentage, while a person whose credentials are unknown may bypass it.
Finally, the creation in Connecticut of a free market in gestational arrangements, without statutory or regulatory constraints, has potentially ominous implications. People choosing to create and raise a child are acting upon a powerful instinct with unparalleled emotional motivators and ramifications. Those who would supply their needs — the donors, doctors, brokers, lawyers and others comprising what has been called "the fertility industry" — are today governed only by general laws and by their own professional codes and personal ethics. The combination of high vulnerability on the part of their consumers, the presumably lucrative environment in which these services are being provided, the lack of public awareness as to what they do and how they do it, and the fundamental, lifelong consequences to the children whose lives their efforts literally bring into being all warrant discussion of whether our becoming one of the few, if not the only venue in this land in which such a business can be carried on without effective supervision, is a desirable goal.
Anna Freundlich, Adoption and Assisted Reproduction, 15 (2001).
IV. Conclusion and Orders
Before the court at this time is plaintiffs' motion for an order to show cause why the Department of Public Health should not be compelled to record both of them as parents of Baby A and Baby B on their birth certificates. We have been informed that equitable parenthood is not a recognized concept; Doe I, supra; and intentional parenthood is a variation on that theme. While that case dealt with an already born child, the reality must not be overlooked that with the name on the birth certificate goes custody. This court does not read § 7-48a as clearly authorizing the unqualified enforcement of private gestational agreements. Our legislature, by the revisions to § 45a-724 described above, outlined how a partner of a parent can become a parent. Since the gender and marital status of the parent and the partner are immaterial, this is not a case raising issues of equal protection or invidious discrimination.
No controversy between the signatories to the carrier agreement in evidence here has been brought to the attention of this court. While Doe II, supra, recognizes that this court possesses subject matter jurisdiction to enforce an agreement of this sort as between those who are parties to it, that case does not stand for the proposition that the superior court has the power to compel DPH, on the facts alleged and proven here, to fully conform to what plaintiffs demand.
This court concludes that Mr. Oleski, as the biological father of Baby A and Baby B, is entitled under Connecticut law to be named as the children's father on their birth certificate. This is on account of his genetic relationship with those children, as to which the gestational agreement is evidence.
Mr. Nagy, on the other hand, does not stand in the same position. As a partner to Mr. Oleski, he does have a path to the goal he seeks. That path leads through probate court. There is no authority for the proposition that he may pursue a shorter route in this forum. The fortuitous availability of the option to adopt presented by the facts of this case mitigates or eliminates the risks outlined in subsection IV-D, above, without foreclosing him from the goal he seeks.
It is, therefore, ORDERED:
1). That as to the Plaintiff Michael Oleski the motion for order to show cause is granted, and he is declared and adjudged to be the biological and legal father of unborn Babies A and B; and
2). That as to Plaintiff Keith Nagy, the motion for order to show cause is denied.