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Assisted Reproduction

Maine Supreme Judicial Court To Decide Who Are The Parents In A Gestational Surrogacy Arrangement

The Maine Supreme Judicial Court has just heard a case of first impression in that state and will ultimately decide whether Intended Parents, working with a gestational carrier in Maine, can be considered the legal parents of their child or whether they will have to proceed with an adoption to finalize their parental rights:

One woman provided the egg, another woman provided the womb. The Maine Supreme Judicial Court is now being asked to consider which woman should be listed as the mother on the baby’s birth certificate.

The law court’s ruling on the subject could be groundbreaking. The decision has the potential to lay the groundwork for how courts would go about legally determining motherhood in future cases, as it’s now largely uncharted territory for Maine’s courts. On Thursday, the state’s highest court heard oral arguments in a case in which Robert and Celia Nolan are appealing a Bangor District Court ruling that left the names of gestational carrier Kristen Labree and her husband, Jeff, on the birth certificate of a baby born in 2010.

The Thursday hearing was unusual in that only one lawyer presented his case before the court, as both parties are in agreement on the issue. Attorney Christopher Berry told the justices there’s no dispute over custody or parental rights and the Labrees agree that their names should be replaced on the birth certificate documentation by those of the Nolans. The Labrees, he told the court, believe their role in the surrogacy agreement has been fulfilled.

The Nolans sought a declaration at the District Court level that they are the mother and father of the child, but while the lower court found that Robert Nolan had established paternity, it ruled that it lacked the authority to declare the maternity of Celia Nolan. The lower court ruling in the Nolan case represented the latest in what Supreme Judicial Court Justice Ellen Gorman described as a historically uneven response to maternity debates at the District Court level. “Your firm has taken these sorts of cases to court across the state and have been receiving different rulings from different district courts,” Gorman told Berry, whose firm specializes in adoption and surrogacy law. “Shouldn’t we say the best practices in determining the maternity is DNA testing?”

Berry told the justices Thursday that no DNA test had been performed in the case immediately before them, and Justice Jon Levy questioned whether the high court would be setting a cumbersome precedent by requiring such testing to determine maternity in gestational surrogacy cases. Berry said the parties do have an affidavit from the doctor testifying to the fact that Celia Nolan’s egg was used in the in-vitro fertilization process.

Levy told Berry the Supreme Judicial Court must be careful in its ruling even though the Nolans and Labrees are in agreement over the preferred outcome, as the decision in the Nolan case could be used to settle future cases in which there is a dispute over parental rights. Chief Justice Leigh Saufley agreed. She said overturning the District Court’s ruling that it lacks the authority to declare maternity would mean, moving forward, district courts in Maine will indeed have that authority. She noted such a ruling in the Nolan case could have the impact of wiping away the rights of gestational carriers in future cases in which the details are less clear or there is disagreement between the surrogate mother and genetic mother.

The Maine Supreme Judicial Court will issue its decision on the case in the coming months.

Even if the Maine Supreme Judicial Court finds that the Nolans are the legal parents, based upon my reading of the Justices’ questions, it will likely do so on the grounds that both Mr. and Ms. Nolan are genetically related to their child. What will probably be left unresolved is what happens if both Intended Parents are not genetically related due to the use of an egg, sperm or embryo donor. As an advocate for Intended Parents, I would hope that the Justices follow the lead of the California Supreme Court in Johnson v. Calvert and focus upon the parties intentions as articulated in their surrogacy contract rather than focusing upon the presence of a genetic connection as this would avoid future challenges where both parents are not able to prove consanguinity with their child.


3 comments for “Maine Supreme Judicial Court To Decide Who Are The Parents In A Gestational Surrogacy Arrangement”

  • the Intended Mother

    Thanks for the analysis of our case, but it is not so simple as adopting if the court does not find us the true and only legal parents, and corrects the birth certificate. My husband has already been declared the father (but in the ruling denied having his name on the birth certificate) and I have been declared the de facto mother. So it would perhaps be a step-parent adoption, but my status as the de facto mother means that adoption isn’t applicable. So we’re in a no-man’s land right now.

  • http://www.vmfirm.com Andrew Vorzimer

    I certainly understand the frustration and anxiety you must be feeling. I also appreciate you taking the time out to comment here.

    Over the past two decades, I have unfortunately had thousands of couples in similar predicaments. The laws on the books across the country are archaic. Most were promulgated before the advent of IVF, let alone did they ever contemplate the notion of gestational surrogacy. So sadly we are left with these patchwork presumptions from more than 30 years ago that, in operation, discriminate against infertile couples and, in particular, Intended Mothers.

    When I initially read the case brief it mentioned that your husband was declared the father of your baby but they nevertheless placed the surrogate’s husband on the birth certificate. I have to assume this was because of the marital presumption which is why I mentioned the possible need for an adoption.

    Maine seems to handle these cases differently than most other jurisdictions. Normally what we do in states that have laws similar to Maine (where they recognize the surrogate as the mother) is to proceed with a pre-birth paternity action. This allows the Intended Father (assuming he is the genetic parent) to have his name added to the initial birth certificate along with the gestational carrier. Then our clients will return to their state of residence, with their baby, and complete a step-parent adoption. Once the step-parent adoption judgment is issued, we request an amended birth certificate from the state of delivery which will list both Intended Parents as the legal mother and father and obtain an order requiring the original birth certificate to be sealed.

    From the information I was able to peruse from your case, there was no mention as to why your husband’s name was not placed on the birth certificate and as to why a step-parent adoption could not be completed. Also, please understand that I am a firm believer that any state law that does not recognize the Intended Mother as the legal mother (regardless of genetic connection) is discriminatory on its face and out to be struck down given we allow a man who utilized a sperm donor to be declared the legal father.

    I wish you the very best and hope that the Maine Supreme Judicial Court recognizes the inherent unfairness of their existing statutory framework and declares you the legal mother of your child. Moving forward, hopefully the decision will be expansive enough so that all future Intended Parents working with a gestational carrier will be capable of petitioning a court before their child is born to have them recognized as the legal parents.

  • the Intended Mother

    Thank you. Our first child was born via gestational surrogacy in IL, where we were able to obtain a PBO (pre-birth order) so that our names were on the birth certificate from the get-go.

    For our son born in ME, a PBO is not allowed. Paperwork can only be filed for a legal person (after birth). So we had the paperwork ready, and signed it mere hours after the baby was born, and the documents were taken directly to court – so that we could get a court order to have our names on the birth certificate application. By law, the hospital has 10 days to submit a birth certificate application, and by default, the birthing woman is listed as the mother, and her husband if any as the father. The hospital of course knew our situation and held off on filling out the birth certificate application, waiting for the court order affirming us as the parents. But the magistrate who received our papers was new and unsure of what to do, so he took his time making a decision – and the 10 days ran out. So the hospital had to send the BC application with our surrogate and her husband listed as the parents. And amending the birth certificate after the fact is proving to be a complicated matter, as you have seen, even though we are the bio parents and both parties are in complete agreement.

    The current judgment leaves both us and our surrogate’s family in an unclear position. We cannot get a SSN for our son – our surrogate would have to do so. She may be called upon to make medical decisions for our child. We could sue her for his college tuition. He may be eligible to make a claim on their estate. We are all friends so we don’t anticipate most of those scenarios, but really the current ruling is not in the best interest of the child, and is a thorn in the side of all of us involved.

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