California Surrogacy Decree Protects Both Dads, Texas Finds

BY ARTHUR S. LEONARD | The Texas Court of Appeals ruled on February 10 that the Harris County District Court had properly ordered the registration in Texas of a California decree involving a Houston gay male couple who were “intended parents” under a 2005 gestational surrogacy agreement.

Ruling unanimously in Berwick v. Wagner, the court found that such registration complied with the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act, which states across the nation have adopted to avoid legal inconsistencies in handling matters related to the care of minors.

Appellate court finds non-sperm-donating dad has same rights as biological father

The February 10 ruling does not resolve the merits of a pending custody dispute between the two fathers, whose relationship has ended, but it appears to effectively dispose of the biological dad’s argument that his former partner has no standing to seek a Texas court order spelling out his continuing legal relationship to their son.

Jerry Berwick and Richard Wagner began their relationship in 1994, lived together in Houston from 1997 until 2008, and married in Canada in 2003. In 2005, they decided to have a child, and Berwick provided the sperm used to fertilize anonymously donated ova implanted in a married California woman with whom they had a gestational surrogacy agreement. A California court issued a decree establishing Berwick and Wagner as the prospective child’s parents and barring any claims to parental status by the surrogate and her husband. The court ordered the hospital where the child would be born to enter Berwick’s and Wagner’s names on the birth certificate, and made reference to a stipulation filed by the gay couple that they would be the child’s custodial parents.

When the child, identified in the court’s ruling as C.B.W., was born in December 2005, Berwick and Wagner took custody of him and returned to Houston, where they lived as a family until 2008. However, when Berwick ended the relationship that year, Wagner filed suit in Texas to establish a “joint managing conservatorship” of C.B.W. Berwick countered with a claim seeking sole conservatorship, arguing that Wagner lacked parental status since he was neither the boy’s biological nor adoptive father.

That suit is still pending.

The matter settled by the Court of Appeals involved a separate petition from Wagner that sought to have the original California decree registered in Texas as a “child custody determination.”

Berwick opposed the suit, claiming that Wagner was mischaracterizing the decree, which did not mention custody directly. In fact, while the decree referenced the couple’s stipulation about the two men being custodial parents, it did not explicitly incorporate it.

That did not prevent the Texas trial judge and the Court of Appeals from concluding that the California decree, in the words of Chief Justice Sherry Radack, “qualifies as a child custody determination despite the absence of customary custody provisions on the face of the judgment.”

Finding that the California court had proper jurisdiction in issuing the 2005 decree, Radack pointed out that the purpose of that order was to settle any “legal custody, physical custody, or visitation” issues that might arise between the surrogate and her husband, the child’s presumptive parents, and the intended parents, Wagner and Berwick. The decree necessarily settled the question of child custody, the court found.

The upshot here is that Texas courts will treat both Berwick and Wagner as legal parents and custodians of the child. In the “managing conservatorship” suit still pending before the Harris County District Court, the two men will have equal status as legal custodial parents, and the court will decide the question of a joint or sole appointment by applying the customary standard of the child’s best interest, just as it would with any two legal parents contesting custody.

Lambda Legal’s Dallas office represented Wagner on the appeal.