This court stated, more than ten years ago, that neither artificial insemination nor surrogate motherhood is " new [or] scientifically advanced." Doe v. Doe, 244 Conn. 403, 419, 710 A.2d 1297 (1998); id. (artificial insemination dates back to 1770s and surrogate motherhood is recorded in Book of Genesis). Although the agreement describes Hargon as the " adopting parent," its language indicates an understanding by the parties that Hargon's adoption of the children would occur by operation of the gestational agreement itself, and that he would adopt the children by more traditional means only " if necessary...."
" (Citation omitted.) Doe v. Doe, 244 Conn. 403, 453, 710 A.2d 1297 (1998). An overview of the statutory scheme that governs adoptions in Connecticut, therefore, is necessary to a resolution of the board's claim that it lacked jurisdiction over the waiver application submitted to the board by the Probate Court in connection with the plaintiffs' adoption application.
In Oleski v. Hynes, supra, this court analyzed Connecticut decisional and statutory law in an effort to discern whether the concept of "intentional parentage" is recognized in this state. For reasons set forth therein at length, this court concluded that it is not. The Supreme Court, in Doe v. Doe, 244 Conn. 403 (1998), ruled upon a claim to custody made by a woman divorcing the father of a child born to a surrogate mother. Given her lack of a biological or adoptive relationship to the child, the Supreme Court expressly rejected the doctrine of "equitable" parentage as a basis for her claim.
A good overview of the situation nationally is provided by Adam Plant in "With a Little Help from My Friends: The Intersection of the Gestational Carrier Surrogacy Agreement, Legislative Inaction, and Medical Advancement," 54 Ala. L.Rev. 639 (2002). In 1998 and 1999, our Supreme Court handed down three so-called "parentage" decisions which must be reckoned with in any decision involving this subject, to wit, Doe v. Doe, 244 Conn. 403 (1998);Doe v. Roe, 246 Conn. 652 (1998), and In re Baby Z., 247 Conn. 474 (1999). While the law has not remained fixed since 1999, these three cases still provide express direction to trial courts which cannot be ignored.
The department of health further claimed that once genetic identity was established, the plaintiff who has been determined to be the biological father of the child would be named on a replacement birth certificate and the remaining plaintiff would have to go through the adoption process to legalize his parental rights. The department relied upon Doe v. Doe, 244 Conn. 403, 710 A.2d 1297 (1998), claiming that to be considered the parent of a child, a person must have either conceived the child or adopted the child. The court rejected this argument.
In addition, the equitable parent doctrine, which necessarily requires an ad hoc, case-by-case determination of parentage after the facts of the case have been determined, would eliminate the significant degree of certainty regarding who is and who is not a child’s parent that our jurisprudence supplies. [Doe v Doe, 244 Conn. 403, 444 n 46, 710 A.2d 1297 (1998), overruled in part on other grounds, In re Joshua S, 260 Conn. 182, 796 A.2d 1141 (2002).]
Section 46b-57 authorizes the formal intervention of an interested third party whose interest may not already be before the court in an existing controversy, thus serving as a procedural supplement to § 46b-56, which does not require a third party to intervene in order for the court to award custody to that party. See Doe v. Doe, 244 Conn. 403, 441, 710 A.2d 1297 (1998); see also Cappetta v. Cappetta, 196 Conn. 10, 14-15, 490 A.2d 996 (1985) (although "orderly adjudication of the custody claims of nontraditional parties is best managed by having such claimants become party intervenors at the earliest possible appropriate time," statutory scheme permits award of custody to nonparty "if, even without formal intervention, that person's potential custodial status was properly before the court"). Accordingly, when a third party seeks to intervene in a custody proceeding, he or she must allege the same facts that the court must find when awarding custody to a third party who has not intervened in the proceeding but whose interest has been brought before the court in some other manner.
. . ." Doe v. Doe, 244 Conn. 403, 476, 710 A.2d 1297 (1998) ( Katz, J., concurring in part and dissenting in part). On the basis of the record before the court at the time of the neglect proceeding, we can discern no distinction in the custodial status of either parent.
terest of all parties for the court to declare them as such and to authorize the issuance of the replacement certificate naming them as the parents on that certificate; and (5) The anonymous egg donor has no right or interest in any child born as a result of A.I.D. pursuant to General Statues § 45a-775 and, therefore, cannot be cited in as a party to have her name placed on the certificate. In response, the department counters: (1) The inclusion of the plaintiffs' names as parents on the children's birth certificate and replacement birth certificate would permit inaccurate information on these certificates in contravention of the vital records statutes, General Statutes §§ 7-42, 19a-40 and 19a-42, since the plaintiffs have failed to conclusively establish who is the genetic parent of Baby A and Baby B; (2) The plaintiffs have not alleged or proved a parent child relationship between them and the unborn children to fall within the definitions of "parent" and "child" as articulated in Doe v. Doe, 244 Conn. 403, 439, 710 A.2d 1297 (1998); (3) The plaintiffs have neither naturally conceived nor adopted these children as required in Connecticut to be considered a parent for purposes of inclusion on the replacement certificate; and (4) There is no objection to having the genetic parent, who conceived the child, being named on the replacement certificate once this can be determined through genetic testing, but there is an objection to having the intended parent, who is not genetically related to the child, being declared a parent of a child when that person neither conceived nor otherwise adopted that child through the appropriate procedures. A.Subject Matter Jurisdiction
In the present case, the department distinguishes these aforementioned cases on the ground that the plaintiffs here are a homosexual couple. The department, citing Doe v. Doe, 244 Conn. 403, 710 A.2d 1297 (1998), maintains that to be considered a parent of the child, that person must have either conceived the child, meaning here that the results of a genetic test indicate a ninety-nine percent or greater probability that at least one of the plaintiffs is the father of the child, or adopted the child. The department asserts that because it is impossible for both plaintiffs to be a parent of the unborn child under this definition, and because no genetic marker test has been performed to reveal the biological father, neither of the plaintiffs can be adjudged to be a parent of the unborn child or be named as a parent on a replacement birth certificate.