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Surrogate Or Mother: The Case Before A Texas Judge

Looks like this Texas judge will have to make a modern-day Solomonic decision:

A showdown between former friends who became parents together has Texas family lawyers riveted over what is turning into a messy child custody battle that could leave their twin children motherless. Cindy Close and Marvin McMurrey, longtime friends, wanted to be parents but didn’t want to marry, according to the Houston Chronicle. They decided to use in vitro fertilization, and an egg donor was set up. Close, who is in her late 40s, gave birth to twins in July. While there was no written agreement between the two, the understanding had been that Close would raise the kids and McMurrey would support them as a father figure, according to the Chronicle. But after they were born, McMurrey threw Close for a loop: He sued to demand custody, saying she was a mere surrogate, and revealed that he was gay.

The twins, who were born prematurely, were sent from the hospital to McMurrey’s partner’s home in what McMurrey convinced a judge is a “temporary” fix. Close is only allowed to see them on short, camera-monitored visits. A page set up on Facebook by her friends to “Give Cindy Back Her Babies” has attracted almost 1,000 “likes.” Now a family law court will determine the fate of the twins — and it promises to be a real legal bear. McMurrey claims the deal was for surrogacy; Close says they were supposed to be co-parents. Since there was no written agreement between them, Judge Bonnie Crane Hellums will have to sort out the facts of the case and award custody to the proper party.

Based upon the limited public information available as well as existing Texas law, my suspicion is that the court will conclude that Ms. Close is the mother of these twins and order shared custody. I am curious though what documents, if any, were provided to the IVF clinic. In a standard surrogacy arrangement, the medical facility will insist on a legal clearance letter confirming the existence of an executed surrogacy contract (some clinics require the actual contract as well) before proceeding with any transfer. If the protocols of this facility required such a document, its absence would be telling and further corroborate Ms. Close’s allegations. Similarly, it will be interesting to find out whose name(s) appeared on the egg donor contract. To the extent that Ms. Close was a party to the egg donation agreement, it would be further compelling evidence of the parties original intentions.

We will follow this story and post an update following the court’s ruling.

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