Maine SJC Rules in Gestational Surrogate Case

The Maine Supreme Judicial Court issued a unanimous ruling on May 3 in Nolan v. LaBree, 2012 ME 61, holding that the Maine District Court has jurisdiction to make a declaration of maternity in a gestational surrogacy case.  Overruling the Bangor District Court, the SJC found that under Maine's version of the Uniform Act on Paternity, the court is authorized to make a declaration of "parentage," observing that this "gender neutral" language reflected legislative intent that the Act was not restricted to declarations of paternity, despite its title.  "The titles of chapters and sections are not legal provisions," said the court.

The case involved a heterosexual married couple, Robert and Celia Nolan.  They enlisted Kristen LaBree, a heterosexually-married woman, to be their gestational surrogate for the child that was born on December 9, 2010.  "Approximately nine months before the birth," wrote Justice Ellen A. Gorman, "a zygote created through the in vitro fertilization of Celia Nolan's egg cell with sperm from her husband, Robert Nolan, was implanted in Kristen."  There was no dispute about the facts, and Kristen LaBree and her husband disavowed any interest in being the legal parents of the child, to whom neither are genetically related.  However, upon the birth of the child, the Department of Health and Human Services filed a birth certificate listing the LaBrees as the parents of the child.

This is not as strange as it may sound.  The normal procedure when a child is born is to make a birth record identifying the birth mother, and if she is married, identifying her husband as the father.  But in a surrogacy case, the next step is to file an action for a declaration of parentage, and then to use that declaration to get a new birth certificate issued showing the legal parents.  In this case, the Bangor district court judge issued a declaration of paternity for Robert Nolan, but refused issue a declaration of maternity for Celia Nolan, despite uncontested testimony that her egg had been used to create the zygote.  The trial judge opined that under Maine statutes the court could not issue a declaration of maternity, as there was no specific statutory authorization for one, as mothers are normally identified at birth through the observation of those present at the event.  Instead, the trial judge declared that Celia Nolan is the "de facto" mother, and awarded sole parental rights and responsibilities to the Nolans. 

The error of the trial court was to assume that because the Uniform Act on Paternity does not specifically mention maternity, it does not give the court jurisdiction to issue a declaration of maternity.  Since the actual provision in question uses a gender-neutral term, "parentage," the SJC found that the failure to mention maternity was not an issue, as the term "includes both paternity and maternity."

The court took note that this was an uncontested case.  The LaBrees were not seeking custody or recognition as the parents of this child.  "We therefore have no occasion to consider here how to analyze a case in which the parties do not agree," the court commented, noting that there was no need for it to address constitutional issues raised by the Nolans in their appeal.  If the Department of Health refuses to issue an appropriate birth certificate upon presentation of the declarations of paternity and maternity, said the court, the Nolans could initiate a new lawsuit against the Department.

Christopher M. Berry argued the appeal for the Nolans.  Numerous amicus briefs were filed in the case, including a brief from Gay & Lesbian Advocates & Defenders of Boston.  As gay men have begun to contract with gestational surrogates to bear children for them, usually using anonymously donated eggs, this construction of the statute has obvious importance in LGBT law.  Significantly, the court's construction of the Uniform Act on Paternity did not turn in any way on the sex of the parties.

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