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Should Vermont have a gestational surrogacy statute? Part I.

Should Vermont have a gestational surrogacy statute?  Part I.

By Kurt M. Hughes, Esq.  4/12/2015

During the fifteen years or so that I have been writing and negotiating gestational surrogacy contracts, I have often wondered if I should be working to have legislation passed that would help guarantee the enforceability of these contracts.  Sandwiched between New York (which makes paid surrogacy arrangements a felony) and New Hampshire (which passed a comprehensive statute allowing surrogacy in 2014), Vermont is one of twenty-one states with no statute governing surrogacy.  According to an article in the New York Times by Tamar Lewin (9/17/14), which relied on statistics compiled by attorney Diane Hinson’s Creative Family Connections, seventeen states have laws permitting surrogacy, while five states have statutes declaring surrogacy contracts to be void and unenforceable. 

So without a statute, how do we know that a surrogacy contract using Vermont law would be enforceable?  The short answer is “we don’t”, but the longer answer leads me to believe that the Vermont Supreme Court would ultimately uphold the enforceability of a properly drawn contract, especially regarding the all-important question of parentage.  My optimism comes mostly from language in the infamous case of Lisa Miller-Jenkins v. Janet Miller-Jenkins.  In that case, Lisa was the biological mother of a child conceived by a sperm donation with the intention that the child would be co-parented with her civil union partner, Janet.  The Vermont Family Court issued an order that determined that both parties were the parents of the child, who was three years old at the time they split.  The Court awarded primary custody to Lisa, and Janet was given visitation rights.  Lisa appealed the family court’s order, claiming that Janet was not the child’s biological parent and therefore had no rights.

In rejecting Lisa’s argument, the Vermont Supreme Court examined the parentage statute, which provides that a child born during the marriage (or civil union) of two parties was presumed to be the child of both parties.  Rather than relying on this statute, however, the Court used the 1985 case of Paquette v. Paquette, which held that a step-parent who had assumed the role of a parent (acted “in loco parentis”) with respect to a child could be awarded custody over the biological parent under extraordinary circumstances.   More importantly, the Court worried that if Lisa’s position were accepted, the result would be to leave all children born through artificial insemination with only one parent unless the second parent adopted the child.  “Such a holding would cause tremendous disruption and uncertainty to some existing families who have conceived via artificial insemination or other means of reproductive technology . . ..” 

Referring to an adoption case involving a same-sex couple prior to the enactment of the civil union statute (In re B.L.V.B.), the Court noted that it was again facing a dispute in which the legislature has not dealt directly with new reproductive technologies and the families that result from those technologies.  “Nonetheless, the courts must define and protect the rights and interests of the children that are part of these families . . .. We express, as many other courts have, a preference for legislative action . . . but in the absence of that action, we must protect the best interests of the child.” 

Ultimate, the Court looked to the intent of the parties to determine parentage for Janet, finding that they were in a valid legal union at the time of the child’s birth (which the Court found extremely persuasive), and that it was the expectation and intent of both parents that they would co-parent this child.  Janet participated in the decision to go forward with the artificial insemination, and she actively participated in the prenatal care and birth of the child.  Lisa also named Janet as the co-parent in the dissolution paperwork, and there was no other claimant to parentage as the sperm donor was anonymous.  The Court noted that “virtually all” modern decisions from other jurisdiction supported finding Janet was a parent of the child under a variety of legal theories.  “We adopt the result in this case as a matter of policy, and to implement the intent of the parties.”

Therefore, there appears to be strong support in Vermont’s case law for a finding of parentage in favor of the intended parents in a gestational surrogacy arrangement.  In a disputed case, it is my opinion that if a child were born in Vermont to a gestational surrogate, and the carrier and the intended parents each had independent legal counsel and a competently drafted contract before the birth, that the courts would uphold the enforceability of the contract with regard to parentage.  Some additional considerations would enhance the chances for enforceability: 1) the carrier should obviously not have any genetic connection to the child, which is "gestational" surrogacy.  Having a genetic connection is called a “traditional” surrogacy and fraught with extreme legal risks. 2) The intended parents should ideally be married.  This is especially important for same-sex couples, and intended parents using donated egg or sperm. 3) If the intended parents can get a pre-birth order in their home state, they should do so.  While certainly not a requirement, having a judicial determination of parentage is the one thing that will protect a couple in every state of the union.

So . . . if the Vermont courts will likely uphold a surrogacy contract, why do we need a statute?  More on that in my next installment!