The Connecticut Supreme Court unanimously ruled on January 7 that state laws governing parental status should be construed to authorize listing a same-sex co-parent on the birth certificates of children conceived pursuant to a gestational surrogacy agreement, even though the co-parent has no genetic relationship to the children. In Raftopol v. Ramey, SC 18482, the court rejected the state's argument that the co-parent would have to go through a second-parent adoption proceeding in order to be listed on the birth certificates.
A gestational surrogacy agreement is a contract under which a woman agrees to have an embryo (an egg harvested from another woman which has been fertilized with semen from a man other than the surrogate's husband) implanted in her, which she will bring to term and deliver, surrendering the child to the intended parents under the contract.
Connecticut is rather unusual in having modernized its family law statutes to the extent of affirmatively taking account of gestational surrogacy agreements (unlike neighboring New York, which makes such agreements, and indeed all surrogacy agreement, unenforceable). The relevant statute, G.S. 7-48a, provides, as relevant here: "On and after January 1, 2002, each birth certificate shall be filed with the name of the birth mother recorded. If the birth is subject to a gestational agreement, the Department 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." The reference to "gestational agreement" was added by amendment in 2008, to clarify the law in light of some recent court cases involving whose name would go on birth certificates of children born as a result of the performance of gestational surrogacy agreements.
In this case, Anthony Raftopol and Shawn Hargon, a same-sex American couple residing in Bucharest, Romania, made a gestational surrogacy agreement with Karma Ramey, a Connecticut resident. Raftopol's sperm was used to fertilize eggs from a third party egg donor, and three frozen embryos thus conceived were implanted in Ramey. Two of the embryos resulted in the live birth of twins. Raftopol is the biological father of the twins. Under the gestational surrogacy agreement, Ramey had agreed to terminate her parental rights as a birth mother, and signed the forms necessary for the issuance of a substitute birth certificate, for which Raftopol and Hargon applied to the trial court prior to the delivery date, seeking an order to be named as the two parents on the substitute certificate.
The state entered an appearance before the trial court, objecting to having Hargon named as a parent on the certificates. The state argued that the court did not have jurisdiction to list Hargon, who is not the biological father of the children, on the certificates, and that the court also lacked jurisdiction to terminate the parental rights of the gestational carrier, Ramey, the egg donor, and any husbands either woman might have, who had not been joined as parties in the legal proceeding.
New Haven Superior Court Judge James G. Kenefick, Jr., rejected the state's arguments, ruling that the gestational agreement was valid, Raftopol was the genetic and legal father of the children, Hargon was the other legal father of the children, and Ramey is neither the genetic nor legal mother of the children. Consequently, Judge Kenefick ordered the Department of Public Health to issue the replacement certificates listing both men as the parents. The state appealed to the court of appeals, but the Supreme Court took up the case directly rather than require the purely legal interpretive issues to drag out through an extra layer of judicial review.
The Supreme Court was unanimous in affirming Judge Kenefick's decision, but divided about the reasoning. The majority, in an opinion by Justice C. Ian McLachlan, found ambiguities in the statutory language, but used principles of statutory construction and resort to legislative history to conclude that Judge Kenefick had correctly rejected the state's argument that Hargon could only become a parent of the twins by adopting them. Justice Peter T. Zarella, joined by Senior Justice Christine S. Vertefeuille, concurred in the result but rejected the majority's resort to legislative history, concluding that the statutory language was not sufficiently ambiguous to justify it. Justice Zarella argued that when the ambiguity consists of the statutory language lending itself to two possible meanings, one of which would produce an absurd result, then the other meaning is the one that the court should use.
According to Justice McLachlan's opinion, the construction of the statute argued by the state, if taken to an extreme, could produce the result that a child could be born without any legal parent, an absurd result that could not have been intended by the legislature, in a case of gestational surrogacy where a sperm donor other than an intended father was used to conceive the child. Consequently, the court rejected the state's argument that, despite the reference in the statute to "gestational agreement," only somebody with a biological relation to a child can be a legal parent in the absence of a valid adoption proceeding.
Although the legislature never defined a "gestational agreement" or specified what is required for such an agreement to be "valid," and left other gaps in the law, both the majority and the concurrence concluded that the most logical interpretation of the somewhat complicated statutory scheme governing parentage and birth certificates in Connecticut was to find that the "intended parents" named in a valid gestational surrogacy agreement should be considered the legal parents of the child and, as such, should be named on the substitute birth certificate, marking what some may see as a quite revolutionary step of embracing legal parenthood by agreement. That is, according to this decision, Hargon's parental status towards the twins is based on the gestational agreement, not on any genetic or biological ties or any legal procedure such as adoption.
An interesting side note is that Raftopol and Hargon were married in Massachusetts, and of course Connecticut would recognize that marriage as valid because Connecticut also allows same-sex marriages, but the marital status of the two men did not seem to play any role in the court's legal analysis. One might posit as an alternative analysis that when two men are married and have children through a gestational surrogacy agreement, the children should be considered "children of the marriage" with both spouses having equal parental rights and obligations. This would obviate the need to demonstrate that one of the men is the biological father of the children, as was done in this case. After the court's ruling, it is questionable that any biological link need be shown, and parentage would be premised on the realities of the situation, not artifical genetic distinctions.
Brave New World? Actually, just the growing reality of family life in the age of new reproductive technology and alternative forms of family in a diverse society. . . Would that the New York legislature could drag itself into the 21st century and revise our Domestic Relations law to produce such practical results.
Justice McLachlan concluded his opinion with a bill of particulars to the legislature suggesting a variety of issues that it should address in order to bring Connecticut's family law statutes more in line with the times, including suggestions to add definitions of various terms and make explicit what the court found to be implicit in the sometimes opaque statutory language. This caused some consternation to the concurring justices, who rejected the idea of violating separation of powers by having the court intrude into the legislative sphere to this extent. But this byplay between the justices did not affect the outcome, as the Supreme Court was unanimous in agreeing that Mr. Hargon is a father of the children and entitled to be listed as such on their birth certificates alongside his husband, Mr. Raftopol.
The case attracted the attention of professional organizations concerned with the legal issues surrounding reproductive technology, with an amicus brief filed on behalf of the plaintiffs by the American Society for Reproductive Medicine, and its Legal Professional Group, the American Academy of Assisted Reproductive Technology Attorneys, Connecticut Fertility Associates, and the New England Fertility Institute. Attorneys who worked on the brief included Ben Kelin and Karen Loewy from Gay & Lesbian Advocates & Defenders, Thomas Ude from Lambda Legal, John Weltman and Scott Buckley from The Weltman Law Group (Boston), and local counsel Kenneth Bartschi and Karen Dowd from the Hartford, Connecticut, firm of Horton, Shields & Knox PC.