Opinion
No. FA08-4015629
June 13, 2008
MEMORANDUM OF DECISION
Two homosexual men, registered domestic partners in the State of New York, have entered into a gestational carrier agreement with an unrelated woman from Waterbury. They now seek to have the court validate their agreement and to order their names placed on the birth certificate as intended parents of the unborn child. The woman surrogate also seeks to have the agreement validated as well as a declaration that she is not the mother of the child she carries. The State of Connecticut objects claiming that information on birth certificates must be accurate and that only biological or adoptive parents can have their names placed on birth certificates. Such is the subject matter of birth certificates in the contemporary scientific society we now inhabit.
At the outset, it should be noted that this case appears to be one of first impression. It would have been preferable if the legislative branch had given specific statutory guidance to cover situations such as the one presented in the instant case and a variety of other gestational carrier scenarios. Absent that guidance, this court of equity is left to fashion a remedy for the litigants using what statutes and previously decided cases are available regarding this evolving subject matter.
PROCEDURAL HISTORY AND FACTS
On March 4, 2008, the plaintiffs, Peter Griffiths and Angel Naranjo, initiated this action by filing a complaint against the defendants, Kenisha Taylor, Waterbury Hospital and the Department of Health (hereinafter the department). The plaintiffs filed an amended complaint on May 12, 2008, in which they alleged that they entered into a gestational carrier agreement with Taylor that provided for the transfer of two embryos, one consisting of the sperm of Griffith and the ova of an egg donor and one consisting of the sperm of Naranjo and the ova of an egg donor, into Taylor's uterus. The plaintiffs asserted that Taylor subsequently became pregnant in November of 2007, but they are unsure as to which embryo developed into the fetus. The plaintiffs claimed that Griffiths, "Father A," is the intended father of the unborn baby and Naranjo. "Father B," is also the intended father of the unborn baby. The plaintiffs, therefore, requested that a judgment be entered (1) validating the gestational agreement, (2) declaring them to be the parents of the unborn child and (3) ordering the department to issue a replacement birth certificate with their names on it.
Griffiths testified that the egg donors were Naranjo's sister and Griffiths' niece. Under General Statutes § 45a-775, egg donors have no rights or interest in any child born as a result of artificial insemination.
On April 10, 2008, the plaintiffs filed a motion for order to show cause why the three forms of relief requested in their petition should not be granted. On April 30, 2008, the department filed an objection to the plaintiffs' motion to show cause, which was joined by Waterbury Hospital. On May 12, 2008, the court conducted a hearing at which the two plaintiffs and the defendant gestational carrier testified, two exhibits (the gestational carrier agreement and the affidavit of Michael B. Doyle M.D.) were admitted without objection, and the lawyers for all parties were heard at oral argument. All parties stipulated that the court could render its decision based upon the testimony and evidence produced at the hearing, oral argument of counsel, and the briefs presented before and after the filing of the amended complaint. No further court proceedings were requested.
On May 15, 2008, the Department filed an objection to the plaintiffs' amended complaint and motion to show cause. In its objection, the department incorporated its original objection to the motion to show cause and requested that the court deny the plaintiffs' petition to declare Naranjo and Griffiths to be the fathers of the unborn child and the plaintiffs' request that the court order the department to include both Griffiths and Naranjo on a replacement birth certificate. The department asserted that the court must first receive evidence, in the form of a genetic test, as to which plaintiff is the biological father of the child. Once that is determined, the department will subsequently issue a replacement birth certificate with that plaintiff's name on it only. The remaining plaintiff will then have to go through the adoption process in order to legalize his parental rights.
LEGISLATIVE HISTORY
Connecticut currently lacks a gestational carrier agreement statute. However, General Statutes § 7-48a does provide in relevant part that "each birth certificate shall be filed with the name of the birth mother recorded. The Department of Public Health shall create a replacement certificate in accordance with an order from a court of competent jurisdiction . . ." Although the text of the statute fails to indicate whether it pertains to gestational agreements, the legislative history of § 7-48a reveals that the legislature did, in fact, intend this statute to encompass such agreements.
Section 7-48a was enacted in 2001 as Public Acts 2001, No. 01-163, § 28. When the bill from which the statute derived, House Bill 6569, § 28, was first introduced, it provided extensive language about gestational agreements. It specifically provided for the preparing of a birth certificate by the Department of Health with the intended parents, under a court approved gestational agreement, named as the parents of the child. For reasons that are unclear, this section of the bill was amended by the Legislative Commissioner's Office #7145 on May 24, 2001, to merely provide: "On and after January 1, 2002, each birth certificate shall contain the name of the birth mother, except by the order of a court of competent jurisdiction." In the House proceedings on the amendment, Representative Eberle stated: "This amendment makes a number of technical corrections and changes . . . [I]t removes the language on gestational agreements and simply substitutes the requirement that the mother on the birth certificate shall be the birth mother unless — except by order of a court of competent jurisdiction." 44 H.R. Proc., Pt. 11, 2001 Sess., p. 3719. Therefore, the original version of § 7-48a only provided that single sentence.
Representative Eberle, however, did not discuss the reasons for the amendment.
In 2004, Public Acts 2004, No. 04-255 amended § 7-48a by adding that aside from containing the name of the birth mother, except by order of a court of competent jurisdiction, the birth certificate must also "be filed with the name of the birth mother recorded. Not later than forty-five days after receipt of an order from a court of competent jurisdiction, the Department of Public Health shall create a replacement certificate in accordance with the court's order. 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. When a certified copy of such certificate of birth is requested by an eligible party, as provided in [General Statutes §] 7-51, a copy of the replacement certificate shall be provided. The department shall seal the original certificate of birth in accordance with the provisions of subsection 2 of [General Statutes §] 19a-42. Immediately after a replacement certificate has been prepared, the department shall transmit an exact copy of such certificate to the registrar of vital statistics of the town of birth and to any other registrar as the department deems appropriate. The town shall proceed in accordance with the provisions of [§]19a-42."
In 2005, Public Acts 2005, No. 05-272 amended § 7-48a for the second time by deleting the language "contain the name of the birth mother, except by the order of a court of competent jurisdiction, and . . ."
In the House procedures on what became Public Act 05-272, Representative Sayers provided: "This Bill . . . changes the procedures for amending a birth certificate in the case of a gestational agreement . . ." 48 H.R. Proc., Pt. 30, 2005 Sess. p. 9220. Wendy Furniss, from the Department of Health, provided the department's view on the bill: "Section 1 of this bill will clarify . . . the procedure for amending a birth certificate in the case of a gestational agreement. The language `. . . contain the name of the birth mother, except by the order of a court of competent jurisdiction . . .' is being deleted to make it clear that the hospital shall record the name of the birth mother on the birth record regardless of whether a court order has been issued. It is the responsibility of the Department of Public Health to follow up on the court order and subsequently make a replacement birth record to reflect the names of the intended parent(s)." Conn. Joint Standing Committee Hearings, Public Health, Pt. 10, 2005 Sess., p. 2943.
In 2007, Public Acts 2007, No. 07-252 amended § 7-48a a third time, which is the current version of the statute, to read as follows: "On and after January 1, 2002, each birth certificate shall be filed with the name of the birth mother recorded. 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. When a certified copy of such certificate of birth is requested by an eligible party, as provided in [§]7-51, a copy of the replacement certificate shall be provided. The department shall seal the original certificate of birth in accordance with the provisions of subsection (c) of [§]19a-42. Immediately after a replacement certificate has been prepared, the department shall transmit an exact copy of such certificate to the registrar of vital statistics of the town of birth and to any other registrar as the department deems appropriate. The town shall proceed in accordance with the provisions of [§]19a-42." This is the current version of § 7-48a.
Finally, the conclusion that the legislative history reveals an intent to encompass gestational agreements, is further supported by a very recent amendment to § 7-48a. Public Acts 2008. 08-184 amends § 7-48a to read: "On and after January 1, 2002, each birth certificate shall be filed with the name of the birth mother recorded. [The] 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 . . ." This law, however, does not take effect until October 1, 2008.
In the discussion of what became Public Act 08-184 by the public health committee on March 3, 2008, J. Robert Galvin, the Commissioner of Public Health, testified: "The revised language . . . makes it clear that . . . § 7-48a pertains to births that are subject to a gestational agreement. Without this revision, it is difficult to interpret this statute."
From this legislative history, it is clear that the legislature contemplated that a Superior Court would have the authority, under § 7-48a, to enter a judgment on the validity of a gestational agreement and that where there is a valid gestational agreement, the court may then order the Department of Health to issue a replacement birth certificate with the names of the intended parents on it. A review of relevant case law also supports this position.
CASE LAW
In Hatzopoulos v. Murray, Superior Court, judicial district of New Haven, Docket No. FA 02 046329 (February 15, 2002, Gruendel, J.), on the plaintiffs' motion that they be declared the parents of the unborn babies being carried by the defendant, a gestational carrier, the court, Gruendel, J., ordered the plaintiffs to be adjudged the parents and validated the gestational agreement between the parties. The court further ordered that the hospital place the plaintiffs' names on the birth certificates of the children. Moreover, in Velardo v. Murray, Superior Court, judicial district of New Haven, Docket No. FA 04 04805648 (January 22, 2004. Kenefick, J.), the court used Judge Gruendel's opinion, verbatim, in validating a gestational agreement and ordering the hospital to place the plaintiffs' names on the birth certificate of the child being carried by the gestational carrier.
This case was decided prior to the 2005 amendment to § 7-48a, which made it clear that in the case of a gestational agreement, the hospital must record the name of the birth mother on the original birth certificate regardless of whether a court order has been issued. It is then the Department of Health's responsibility to follow up on the court order and subsequently make a replacement birth certificate to reflect the names of the intended parents. See the above provided legislative history.
See also, Friend v. Lugo, Superior Court, judicial district of New Haven, Docket No. CV 02 0467901 (August 20, 2002, Gruendel, J.) (same); and Vogel v. Kirkbride, Superior Court, judicial district of New Haven, Docket No. FA 02 0471850 (December 18, 2002, Gruendel, J.) (same).
This case was also decided prior to the 2005 amendment to § 7-48a. See footnote 4.
In 2005. the court in Dicomo v. Hopkins, Superior Court, judicial district of New Haven, Docket No. FA 05 4007885 (March 7, 2005, Munro, J.), held a gestational agreement to be valid and declared and adjudged the plaintiffs to be the biological and legal parents of the unborn baby. The court further directed the Department of Health "to create, upon receipt of said information, a certificate followed by a replacement certificate for the child as authorized by . . . § 7-48 naming [the plaintiffs] as the parents of said child . . ."
See also, Caird v. Lugo, Superior Court, judicial district of New Haven, Docket No. FA 06 4017776 (February 2, 2006, Frazzini, J.) (same); Caliendo v. Mariano, Superior Court, judicial district of New Haven, Docket No. FA 07 4023465 (January 4, 2007, Frazzini, J.) (same); and Goad v. Arel, Superior Court, judicial district of New Haven, Docket No. FA 07 4025574 (May 24, 2007, Frazzini, J.) (same). In addition, the court in Wray v. Samuel, Superior Court, judicial district of New Haven, Docket No. FA 07 4024921 (April 20, 2007, Kenefick, J.), also issued the same order in a gestational carrier agreement case.
Finally, the most recent case involving gestational carrier agreements, DeBernardo v. Gregory, Superior Court, judicial district of Tolland, Docket No. FA 07 4007658 (November 7, 2007, Shluger, J.) (44 Conn. L. Rptr. 553), contains the most involved discussion on this legal issue. In DeBernado v. Gregory, supra, 553, the intended parents of an unborn child instituted an action against the gestational carrier of the child to enforce a gestational carrier agreement entered into by the parties. The intended parents sought a declaration of their parental rights over the child and an order directing the Department of Health to file a replacement birth certificate for the child with their names on it. Id. The court began its discussion by stating: "There is scant authority in Connecticut approving gestational carrier agreements . . . The Uniform Parentage Act of 2002, not yet adopted in Connecticut, sets out useful guidelines for a court to validate a gestational agreement and to declare the intended parents to be the actual parents of the child. That act requires that the court make a finding that residency requirements have been satisfied, that all parties have voluntarily entered into the agreement and understand its terms, that adequate provision has been made for all reasonable health expenses of the child and carrier parent and that the consideration to be paid to the carrier parent is reasonable." Id., 553-54. The court, after a review of the aforementioned cases, the language of § 7-48a and the gestational agreement at issue, declared the agreement to be valid, enforceable, irrevocable and of full legal effect. Id., 554-55. The court then ordered the Department of Health to create a replacement birth certificate for the child as authorized by § 7-48a. Id., 555.
DISCUSSION
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. "[O]ur vital records require that information recorded on birth certificates be accurate. To faithfully perform this mandate, the Department must know to a high degree of probability that the person that is registering as a child's father is indeed the father." The department adds that in addition, despite Taylor's testimony that she adhered to the terms of the contract and abstained from sex during the time period surrounding the conception, she may have been impregnated by another party altogether, and therefore, a genetic marker test should absolutely be required to confirm the biological father.
The plaintiffs respond that there are cases in Connecticut in which a court found a homosexual couple to be the legal parents of a child, pursuant to a gestational carrier agreement. The plaintiffs further assert that the department's contention that whoever proves to be unrelated to the child after a genetic marker test should then be forced to adopt the child is contrary to the intent of the legislature, per Representative Sherer's remarks when § 7-48a was being amended in 2004. Finally, the plaintiffs argue that the definition of parent provided in Doe v. Doe, supra, 244 Conn. 403, is inapplicable because it was adopted prior to the passage of § 7-48a.
Representative Sherer stated: "A number of years ago . . . this legislature changed the birth certificate registration law to permit a court of competency restriction being the Superior Court to find parentage in accordance with the biological relationship to a child rather than the birth mother if she wasn't the biological mother. And over the course of the years there's been confusion as to how to effectuate the birth certificate. So the language in this amendment pretty much clarifies what to do. It says that after the court orders parentage that within 45 days after the presentation of the court order the Department of Public Health will issue a replacement birth certificate and the original birth certificate with all the required statistical information would remain confidential . . . 47 H.R. Proc., Pt. 14, 2004 Sess., p. 4456-57. There's been the difficult situation where due to the birth being, the parents not being the birth parents the only way to obtain a new birth certificate would be to go to probate court and basically adopt their own child, which no one really thinks is the right thing to do." 47 H.R. Proc., supra, p. 4459.
It is true that in the majority of the aforementioned cases, the egg and the sperm used to create the embryo implanted in the gestational carrier's uterus belonged to heterosexual intended parents (husband and wife); thus, the plaintiffs in those cases were both biologically related to the unborn child. Yet, in Vogel v. Kirkbride, supra, Superior Court, Docket No. FA 02 0471850, the plaintiffs who sought the enforcement of the gestational agreement and a replacement birth certificate were, in fact, two males: Andrew Vogel and his partner, Donald Savitz. The court declared them both to be the legal parents of the child, validated the gestational agreement and ordered a replacement birth certificate, just as it had done in the two gestational carrier agreement cases it had heard earlier that year, Hatzopoulos v. Murray, supra, Superior Court, Docket No. FA 02 046329, and Friend v. Lugo, supra, Superior Court, Docket No. CV 02 0467901, both of which involved a heterosexual couple.
In addition, the court finds the department's argument that, pursuant to Doe v. Doe, supra, 244 Conn. 435-36, only those who conceive a child or adopt a child can be considered to be a parent of that child under Connecticut law, to be inaccurate. In Connecticut, a man can also be adjudged to be a parent of the child by way of statutory paternity provisions. Remkiewicz v. Remkiewicz, 180 Conn. 114, 429 A.2d 630 (1980), rev'd on other grounds, W. v. W., 248 Conn. 487, 728 A.2d 1076 (1999). "The defendant was not [the child's] parent because he was not her biological father, he was not her father by adoption, nor was he adjudged to be her father by a judgment of [a court] in a paternity pleadings brought under General Statutes . . . § 46b-160 or by a formal acknowledgment of paternity filed under . . . § 46b-172." Id., 117. Under both §§ 46b-160 and 46b-172, a man may be declared to be the father of a child without genetic testing. See Hjarne v. Martin, Superior Court, judicial district of New London, Docket No. FA 00 0631333 (May 7, 2002, Lifshitz, J.) (man who knew that he was not the child's father signed a parentage statement in which he acknowledged that he was the father of the newly born child; a birth certificate was then issued naming him as the father).
Section 46b-160 provides in relevant part: "(a)(1)(A) Proceedings to establish paternity of a child born or conceived out of lawful wedlock . . . shall be commenced by the service on the putative father of a verified petition of the mother or expectant mother . . . (2) The verified petition, summons and order shall be filed in the superior court for the judicial district which either she or the putative father resides . . . (3)(A) The court . . . shall cause a summons . . . to be issued, requiring the putative father to appear in court at a time and place as determined by the clerk . . . to show cause why the request for relief in such petition should not be granted . . . (4) If the putative father fails to appear in court at such time and place, the court . . . shall hear the petitioner and, upon a finding that process was served on the putative father, shall enter a default judgment of paternity against such father and such other orders as the facts may warrant . . ."
Section 46b-172(a)(1) provides in relevant part that "[i]n lieu of or in conclusion of proceedings under . . . § 46b-160, a written acknowledgment of paternity executed and sworn to by the putative father of the child when accompanied by (A) an attested waiver of the right to a blood test, the right to a trial and the right to an attorney, and (B) a written affirmation of paternity executed and sworn to by the mother of the child shall have the same force and effect as a judgment of the Superior Court. It shall be considered a legal finding of paternity without requiring or permitting judicial ratification, and shall be binding on the person executing the same whether such person is an adult or a minor . . . Such acknowledgment shall not be binding unless, prior to the signing of any affirmation or acknowledgment of paternity, the mother and the putative father are given oral and written notice of the alternatives to, the legal consequences of, and the right and responsibilities that arise from signing such affirmation or acknowledgment . . . The notice to the putative father shall include, but not be limited to, notice that such father has the right to contest paternity, including . . . a genetic test to determine paternity . . ."
It should be further noted that on almost a daily basis, in our Magistrate Court and in our Superior Court, men and women are declared to be parents of children without a genetic test. While it is true that such tests can be ordered, it is not always the case that they are ordered and often an acknowledgment of paternity will suffice.
This court is of the opinion that § 7-48a, which was enacted after both Doe v. Doe, supra, 244 Conn. 505, and Remkiewicz v. Remkiewicz, supra, 180 Conn. 114, were decided, creates yet another statutory manner in which parentage can be established: by being named as an intended parent in a gestational carrier agreement. The legislative history of § 7-48a clearly evinces that the legislature contemplated that intended parents, irrespective of whether they are biologically related to the unborn child, can be adjudged the parents of the child pursuant to the gestational carrier agreement and be named as the parents of a child on a replacement birth certificate by the Department of Health. Had the legislature intended to limit the intended parents to include only biological parents, it could have done so. Furthermore, when amending the statute in 2004, the sponsor of the amendment specifically provided that the purpose of the amendment was to make it clear that one of the parents should not be forced to adopt the child, which is in direct contradiction to the department's argument.
In addition, it is unclear as to why the department takes issue with placing the unrelated plaintiff's name on a replacement birth certificate, but has no issue with the placing of Taylor's name on the original birth certificate, when she also has no genetic relationship with the child. If no one ever thought to ask a court to order the department to issue a replacement birth certificate, Taylor's name would indefinitely remain on the child's birth certificate, listing her as the mother of that child. This would also be inaccurate information, in violation of what the department states is the public policy underlying the vital records statutes.
Finally, the department's argument that the court cannot grant the plaintiffs' petition because, despite Taylor's testimony that she adhered to the terms of the contract and abstained from sex during the time period surrounding the conception, she may have been impregnated by another party, also fails. This argument would apply to all cases involving gestational carrier agreements, not just those involving homosexual intended parents, and in not one of the aforementioned cases involving heterosexual intended parents did a court require that a genetic test be performed before validating the gestational agreement, declaring them to be the parents to the child and directing the Department of Health to issue a replacement birth certificate.
It is clear that the public policy of the State of Connecticut favors the issuing of orders regarding surrogate parentage. Our legislative history and case law supports this view. The instant case is not about the establishment of genetic, or biological parents, but rather the establishment of legal or intentional parents. Names on a birth certificate are not necessarily just an acknowledgment of paternity but can also establish legal responsibilities to a child. In this era of evolving reproductive technology and intent based parenthood, our laws must acknowledge these realities and not simply cling to genetic connections as preconditions to being placed on a birth certificate.
ORDERS
Accordingly, it is hereby ordered:
(1) that the plaintiffs, Peter Griffiths and Angel Naranjo, be declared and adjudged the intended parents of the unborn child being carried by the defendant, Taylor;
(2) that the gestational carrier agreement between the plaintiffs and Taylor is found to be valid, enforceable, irrevocable and of full legal effect;
(3) that Taylor is declared not to be the mother of the unborn child;
(4) that the hospital where the child is born or if born on route to the hospital, the hospital to which the child is taken immediately after birth, or if born elsewhere, the attending physician or midwife, shall file a birth certificate for the unborn baby, as required by General Statutes § 7-48, placing Taylor's name on it; and
(5) that thereafter, the Department of Public Health is to create a replacement birth certificate for the child as authorized by § 7-48a, removing Taylor's name and naming Peter Griffiths and Angel Naranjo as parents.