Surrogacy Flap in Conn.

Three trial judges split on gay fathers' rights to bypass adoption.

By: ARTHUR S. LEONARD | Different Connecticut trial judges issued conflicting decisions on July 9 and July 10 in lawsuits seeking enforcement of gestational surrogacy agreements between gay male couples and the married women who agreed to bear children for them.

The first, relying on a June decision by yet another Connecticut trial judge, enforced the agreement, ordering the State Department of Public Health to issue birth certificates naming the two men as parents of the twins whose delivery was due later in July.

The second, in contrast, found that Connecticut law required the non-biological father to go through the process of adoption in probate court before being listed on the birth certificates as the father of another set of twins, also due this summer.

A recent amendment to Connecticut law governing birth certificates specifically mentions gestational surrogacy contracts, but does not go into effect until October 1. That has left courts struggling to determine how to handle such agreements under current law that makes no mention of them. The Department of Public Health has clung to the firm position that only biological or adoptive parents be listed on the certificates.

The gay male plaintiff couples, however, took the position that, under their surrogacy agreements, both men are “intended parents” of the children and should be listed on the birth certificates, without need for the non-biological parent to go through an adoption proceeding.

In the June decision, involving a New York couple, Peter Griffiths and Angel Naranjo, whose gestational surrogate lives in Connecticut, Judge Lloyd Cutsumpas concluded that the legislative history of evolving birth certificate law in the state supports the conclusion that Connecticut now has three authorized ways to achieve parenthood – biological procreation, adoption, or being an “intended parent” under a gestational surrogacy agreement.

He found no public policy reason to refuse to enforce a gestational surrogacy agreement that seemed on its face to be fair, where the parties to the agreement did not oppose enforcement, and to which only the Department of Public Health objected.

In the July 9 opinion, Judge Richard M. Marano detailed the efforts of a gay couple, Aidan Cassidy and Charles Teti, to have twins by contracting with Dedra Williams as their surrogate and using each of the men's sperm to fertilize one of two eggs implanted in her. The implantations were successful, and twins were due.

State law requires that right after a baby is born a birth certificate be issued identifying the birth mother – Williams, who has no biological relation to the expected twins – and the father, if known. The two gay men sought to be named as parents on both “replacement birth certificates” that DPH, presented with a court order, would issue right after the initial ones.

As was the case with Griffiths and Naranjo, the New York couple, the Department of Public Health balked at issuing replacement certificates without proof of which man was the biological parent of which child, and then would only list the biological parent of each child. Each of the two men would next have to adopt his partner's biological child.

Judge Marano, citing Cutsumpas' reasoning, ordered that the Department of Public Health issue replacement birth certificates, when appropriate, naming both Cassidy and Teti as parents of each of the twins.

The day after Marano ruled, however, Superior Court Judge John D. Boland rejected Cutsumpas' reasoning in ruling against the effort by Michael Oleski and his partner, Keith Nagy, to both be named parents – though only Oleski donated sperm – on replacement birth certificates for the twins they were expecting.

Boland found that current Connecticut law does not mention gestational surrogacy, and that existing case law rejected the concepts of “equitable” or “intended” parents. Pointing to the Legislature's authorization of adoption by the unmarried partner, same-sex or different-sex, of a biological parent, the judge stated that the clear intent was that such partners only become legal parents through the careful process of adoption in probate court, which involves a finding that the partner is a fit parent and that the adoption is in the child's interest.

Boland acknowledged that the Legislature's amendment to the law, adding mention of gestational contracts, goes into effect October 1, but stated that the mention is cryptic, with little legislative history to clarify it, and would in any event not take effect until after these children are born.

Boland wrote extensively about why he concluded Nagy can only be listed as a legal father through adoption, pointing to concerns about the children's interest, since no determination would be made of Nagy's fitness. He also questioned whether the couple's home state, Ohio, would recognize Nagy as a legal parent, since the lack of finding that he is fit might also concern officials there.

Amplifying his point about what the Legislature intended when it approved adoption by the same-sex partner of a biological parent, Boland noted that stepparents, who may have known and cared for a child from birth, are required to go through the probate court adoption process to become legal parents, and argued it was appropriate that a co-parent under a gestational surrogacy contract should have to go through the same vetting.

Connecticut's past favorable rulings regarding surrogacy agreements involving married couples contracting with women to bear children for them has made the state a favored jurisdiction for such agreements. New York, in contrast, has been quite hostile. Now, three nearly simultaneous cases involving gay male couples have emerged, with divergent outcomes. Either the Connecticut Legislature should further amend its laws to provide clarity, or an appellate court must do so, likely if Oleski and Nagy choose to appeal Boland's ruling.