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May 7, 2012

GLAD Hails Landmark Ruling in Surrogacy Case

Courts Can Determine Parentage in Gestational Surrogacy Matters

Addressing the issue of parentage in gestational surrogate births for the first time, the Maine Supreme Judicial Court on May 3 ruled that District Courts have the authority under current law to determine who a child’s parents are when the child is conceived through procedures like in vitro fertilization and then carried and delivered by another person.

“This ruling provides certainty to parents and children by clarifying who is and who is not a parent when couples use reproductive technologies,” said GLAD Attorney Mary L. Bonauto, who filed an amici brief in the case on behalf of medical doctors, infertility organizations, and attorneys who specialize in reproductive technologies. “Many people – including same-sex couples – use medical assistance to bring children into their families, and the law needs to keep pace with the science in order to ensure that families and children are acknowledged and protected,” she added.

The case, Nolan v. LaBree, involved a married couple from Massachusetts (the Nolans) in which the wife was unable to carry a pregnancy to term because of prior medical issues. That couple worked with a married couple from Maine (the LaBrees), in which the spouses agreed that Mrs. LaBree would carry a child for the Nolans created from the Nolans’ genetic material. Under a doctor’s care and supervision, the Nolans’ egg and sperm were joined, and the resulting embryo was then placed in Mrs. LaBree, who delivered the child in December 2010. The Nolans were with their son in the hospital and took him home when they were discharged.

All of the adults agreed that the Nolans were the sole parents of this child. However, because Mrs. LaBree gave birth, she and her husband were listed on the birth certificate as the child’s parents. Both the Nolans and LaBrees went to court to clarify that the Nolans are the child’s parents.

A District Court Judge found that Mr. Nolan was a parent but ruled that it did not have the power to determine maternity in a gestational carrier context, because in the Judge’s view, parentage is determined by birth. As a result, Mrs. Nolan was found to be a de facto parent, and Mrs. La Bree remained the “mother.”

The Main Supreme Judicial Court’s opinion vacated the District Court ruling and clarifies that existing law empowers the District Court to determine “parentage,” which means paternity and maternity, including in the context of gestational surrogacy. With a declaration of maternity, the Nolans can obtain a new birth certificate listing them as the sole parents of their son.

“The Amici are the leading medical and legal authorities on reproductive technology, and it was critical for them to share their background and expertise with the Court,” added Bonauto. These were: 

• American Society for Reproductive Medicine
• American Academy of Assisted Reproductive Technology Attorneys (AAARTA)
• RESOLVE
• American Fertility Association,
• New England Fertility Society
• Reproductive Science Center of New England
• Boston IVF. and
• Society for Assisted Reproductive Technology.

Joining GLAD in the amici brief were Patricia A. Peard and Kaim W. McGintee of Bernstein Shur, Sawyer & Nelson, and attorneys from the American Academy of Assisted Reproductive Technology Attorneys.

Additional amici briefs were filed by Concerned Maine Attorneys who specialize in family and child welfare law, authored by Catherine Connors, Nolan L. Reichl, and Kyle N. Kirby of Pierce Atwood; the Maine Attorney General’s Office, and John Sheldon, all seeking this same result.

Read a copy of GLAD’s brief here. 

Read a copy of the Maine Supreme Judicial Court decision here.