State Supreme Court Creates Fourth Way to Confer Legal Parental Status: Intended Parents of Gestational Agreements

Last year, the Supreme Court of Connecticut considered whether Connecticut law allows an intended parent, who is neither the biological nor adoptive parent of a child, to become the child’s legal parent pursuant to a valid gestational agreement.

In this case, the plaintiffs were domestic partners who entered into a written gestational agreement (hereinafter agreement) with the defendant, who would act as a gestational carrier using one of the plaintiff’s sperm and a third-party donor egg. This meant that the defendant would have no biological relationship to the child or children to whom she gave birth. According to the agreement, the defendant’s parental rights would be terminated when the child or children were born, and she would assist the plaintiffs in receiving replacement birth certificates naming the plaintiffs as the parents.

Prior to the expected delivery date, the plaintiffs brought an action seeking declaratory judgment that: 1) the agreement was valid; 2) the plaintiffs were the legal parents of the children; and 3) that the Department of Health (hereinafter Department) would issue replacement birth certificates listing them as the parents. The Department opposed this motion, stating the court lacked jurisdiction to consider the matter on multiple grounds. The trial court found that the agreement was valid, the plaintiffs were the legal fathers of the children, and the defendant was not the biological or legal mother. It further ordered a replacement birth certificate naming both plaintiffs as the parents, and the Department appealed.

Historically under Connecticut law, a person can acquire parental status through conception, adoption, or pursuant to the artificial insemination (A.I.D.) statutes. With respect to the third avenue, a child born as a result of A.I.D. is the child of the husband and wife who requested and consented to the use of this method. Our statutes and case law have established that gestational carriers who are not biologically related to the child being carried have no parental rights to that child. In this case, the Department argued that the court lacked subject matter jurisdiction over the claim, in part, because termination of the defendant’s parental rights was required before the non-biological plaintiff could be given parental status. However, the Supreme Court found that the defendant did not acquire parental status through any of the three avenues, and as such termination was not necessary.

Substantively, the Department claimed that General Statutes § 7-48a, which dictates the issuance of replacement birth certificates, allows only intended parents who are also the genetic parents of the children to gain legal status without first adopting. They argued that the non-biological parent plaintiff could not automatically obtain legal parental status without first adopting the children. To establish whether or not intended parentage was a valid fourth avenue to obtain parental rights, the majority opinion of the Supreme Court underwent an exhaustive analysis of the legislative intent. Ultimately, the majority determined that the legislative history of § 7-48a “effected a substantive change in the law and has created a new way by which persons may become legal parents.” Therefore, the Supreme Court concluded that the legislature meant “to confer parental status on an intended parent who is a party to a valid gestational agreement irrespective of that intended parent’s genetic relationship to the children.” Therefore, the trial court did not err when it ordered the Department to issue a replacement birth certificate with both plaintiffs listed as parents.

Whether advancing or defending a motion involving a surrogacy or gestational agreement, an individual is best served by consulting with an experienced family law practitioner. Should you have questions, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.
________________________________________________________________________________
Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.