New Connecticut Decisions Differ on Enforcement of Gestational Surrogacy Agreements Involving Gay Male Couples

Different Connecticut trial judges issued decisions on July 9 and July 10 in lawsuits seeking full enforcement of gestational surrogacy agreements between gay male couples and married women who had agreed to bear children for them. The first, Judge Richard M. Marano, relying on a recent decision by yet another Connecticut trial judge, enforced the agreement in Cassidy v. Williams, 2008 Westlaw 293059 (unpublished opinion), and ordered that the Department of Public Health (DPH) issue birth certificates naming the two men as parents of the twins whose delivery was due later in July. The second, however, Judge John D. Boland, found in Oleski v. Hynes, 2008 Westlaw 2930518 (unpublished opinion), that Connecticut law required that the non-biological father go through the process of adoption in the probate court in order to be listed on the birth certificate as the father of a child to whom he was not biologically related. The second couple was also expecting their child to be delivered this summer.

These different results arise partly because a recent amendment to the Connecticut law governing birth certificates, which specifically mentions gestational surrogacy contracts, does not go into effect until October 1 of this year, leaving the courts to try to determine how to handle this situation in light of prior statutes that make no mention of such agreements. In addition, the DPH, which plays the crucial role in issuing birth certificates, has taken the firm position that only biological or adoptive parents should be listed on the certificates.

The gay male couples, however, have taken the position that under the surrogacy agreements, both of them are "intended parents" of the child or children and, as such, both should be listed on the birth certificates without need for the non-biological parent to go through an adoption proceeding.

In the earlier decision, Griffiths v. Taylor, announced on June 13, Judge Cutsumpas concluded that the legislative history of the existing birth certificate statute and its predecessors would support the conclusion that Connecticut now has three authorized ways to achieve parenthood: biological procreation, adoption, or being an "intended parent" under a gestational surrogacy agreement. Cutsumpas found no public policy reason to refuse to enforce a gestational surrogacy agreement that seemed to him on its face to be fair, where none of the parties to the agreement were resisting enforcement, and only the DPH was objecting, arguing that there was no specific statutory authorization for what the plaintiffs were seeking and that a birth certificate could not be used to confer parenthood on someone who was neither a biological nor an adoptive parent of the child.

In Cassidy, Judge Marano described the somewhat unusual circumstances of the case. The gay male couple, Aidan Cassidy and Charles Teti, had contracted with Dedra Williams and her husband LeRon. Cassidy and Teti wanted to have twins, each conceived with the sperm of one of them and a donated egg. They obtained eggs (from a source not revealed to the court), and two eggs were implanted in Dedra, one fertilized with Cassidy’s sperm and the other with Teti’s sperm. The implantations were successful, and Williams was due to give birth to twins. Both men sought to be named as parents on the "replacement birth certificate" that DPH would issue upon a court order for each of the children. Connecticut law requires that the original birth certificate contain the name of the birth mother, Dedra Williams, who is not biologically related to the children, and the father, if known. The Superior Court is authorized by statute to order the DPH to issue a replacement certificate naming the legal parents of the child.

In this case, as in Griffiths, DPH balked at issuing replacement certificates without proof as to which man was the biological parent of which child, and then would only list the biological parent of each child, taking the position that the other parent would have to obtain an adoption order from the probate court.

Judge Marano, stating agreement with Judge Cutsumpas’s reasoning, ordered that DPH issue the certificates at the appropriate time naming both Cassidy and Teti as parents of each of the children.

But on July 10, Judge Boland issued his ruling in Oleski, rejecting the approach of Judge Cutsumpas and ruling that there are only two ways to become a legal parent in Connecticut, not three. Boland found that current Connecticut statutes do not mention gestational surrogacy, and that existing statutes and cases rejected the concepts of "equitable" or "intended" parents. He pointed out that the legislature has specifically authorized the adoption of children by a biological parent's unmarried same-sex or different-sex partner, which clearly established, in his view, that the legislature desired partners to be able to become parents only through the careful process of an adoption proceeding in the probate court, which would include a finding that the adoptive parent is a fit person to assume that role and it is in the child’s interest to establish that legal relationship.

Boland acknowledged that the legislature passed an amendment that goes into effect October 1, adding a mention of gestational contracts to the statute, but the reference is cryptic, the legislative history as to its meaning is sparse, and it will not be in effect until after the children affected by this case are born.

This case differs from both Griffiths and Cassidy in that Michael Oleski is the biological parent of the twins whose delivery was expected this summer, and his partner, Keith Nagy, is not a sperm donor in this case, thus not biologically related to either of the twins. Oleski and Nagy are seeking a replacement birth certificate that names both of them as parents, but DPH was opposed to listing Nagy.

Boland wrote an extensive analysis of the policy concerns leading to his conclusion that the only way Nagy can be listed as the legal father of these children is through a probate court adoption proceeding.

First, he stated concern about the interest of the child, pointing out that under the Griffiths opinion there would be no judicial determination that the "unrelated" parent is fit, or that it would be in the child’s interest for him to be named as a legal parent, as the court would merely be inquiring into the regularity and the fairness of the gestational surrogacy agreement.

Boland also points out that it is uncertain whether other states would recognize the parental status, a particularly important point in this case since Oleski and Nagy are residents of Ohio. Whereas states routinely recognize adoptions performed in other states, since they are the result of a considered judgment by a probate or family court that has inquired into the fitness of the adoptive parent, would other states give full faith and credit to parental status secured solely through the enforcement of a private gestational surrogacy agreement that might not even be enforceable under their own state laws, and that might be directly contrary to their laws on parental status?

Finally, Boland saw the recent legislation authorizing co-parent adoptions to represent a policy determination by the legislature that co-parents should be allowed to establish parental rights, but only through a deliberative process in the probate court as a protection of the best interest of the child. He pointed out that step-parents, who may have known and cared for a child from birth, are required to go through this probate court process to become legal parents, and thought it appropriate that a co-parent under a gestational surrogacy contract should have to go through the same vetting process before being named a legal parent.

Thus, Boland ordered that upon the child’s birth, Oleski and surrogate Hynes be listed on the birth certificate. A replacement certificate could be issued listing just Oleski, but Nagy could not be named as a parent of the children until he submitted to the adoption process.

There is a pressing need here for some clarity, as it appears from the nearly simultaneous appearance of three Connecticut cases involving gay couples that Connecticut’s general receptiveness to enforcing gestational surrogacy contracts – as evidenced by numerous prior decisions involving married couples contracting with women to bear children for them – has made the state a favored jurisdiction for such agreements. (By contrast, some other states have been quite hostile to such agreements, and New York has a statute outlawing compensated surrogacy.) Either the Connecticut legislature should further amend the statute to spell out unambiguously how these situations are to be dealt with, or an appellate court needs to issue a clarifying opinion, which is most likely to happen if Oleski and Nagy appeal Judge Boland’s ruling.