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Should Vermont have a gestational surrogacy statute? Part II.

Should Vermont have a gestational surrogacy statute?  Part II.

May 24, 2015

By Kurt M. Hughes, Esq. 

Last month, I began the discussion about whether the courts here in Vermont would enforce a properly drawn gestational surrogacy agreement.   While I concluded that the courts would enforce such contracts, I still strongly believe that we need legislation reinforcing these judicial opinions.  As more and more couples turn to gestational surrogacy as a family-building option, these families need the legal stability and predictability that only legislative action can provide.  Indeed, the Court continues to cry out for legislation in its published opinions concerning parentage claims.  See Moreau v. Sylvester, 2014 Vt. 31 (“[g]iven the complex social and practical ramifications of expanding the classes of persons entitled to assert parental rights by seeking custody or visitation, the Legislature is better equipped” to address this issue.  Id. Deference to the Legislature continues to be prudent “because the laws pertaining to parental rights and responsibilities and parent-child contact have been developed over time solely through legislative enactment or judicial construction of legislative enactments.”)

Contrary to the misconceptions generated by a few high-profile cases, it is seldom the gestational carrier who tries to negate the intent of the parties.  Rather, it is usually the genetic intended parent who tries to disenfranchise the non-biological intended parent, as in the Miller-Jenkins case.  There are also aberrations such as Sherri Shepherd’s recent despicable attempt in Pennsylvania to repudiate her own parentage to a child born to a gestational carrier. Thus, the legislature needs to act to ensure the enforceability of parentage for both intended parents, regardless of their genetic connection to their child.  The best interests of children born through gestational carrier arrangements demands nothing less.

The Texas case of Berwick v. Wagner, decided in 2014, is one of many cases reinforcing this point.  Berwick and Wagner were a same-sex couple, married in Canada in 2003.  They undertook a gestational surrogacy arrangement in California, using Berwick’s sperm and a donor egg.  They obtained a pre-birth order (PBO) from a California court confirming that 1) both Berwick and Wagner were the legal parents of the unborn child, 2) the surrogate and her husband were not the parents of the child and 3) Berwick and Wagner were to be listed on the birth certificate as the child’s parents.

The child, CBW, was born and the parties lived together in Houston for several years.  In 2008, they split up and both filed actions for custody of CBW.  Like Lisa Miller-Jenkins, Berwick claimed that since Wagner was not biologically related to the child he had no legal standing to pursue custody.  After a two-week jury trial, Wagner was awarded sole custody of CBW.

Like so many of these cases, complicated fact patterns are often decided on relatively simple legal principles.  The full faith and credit clause of the U.S. Constitution gives a court order from one state validity in every state of the union.  In affirming the custody award to Wagner, the Texas Supreme Court ruled that “[w]hen presented with a final judgment from another state, Texas may not first look behind the judgment to determine if Texas agrees with the law and application of that law giving rise to it before deciding whether Texas will recognize and enforce it. . . . Our decisions support no roving ‘public policy’ exception to the full faith and credit due judgments.”

The bottom line here is that the ability of intended parents to obtain pre-birth orders is critically important.  The legislature needs to act to make this option available to Vermonters.  The fix could be as simple as changing a few words in our parentage statute, which currently allows a determination of parentage only after the birth of a child.  Amending this statute to allow a determination of parentage at any time would allow intended parents to obtain judicial orders of parentage prior to the birth of their child, thereby helping to ensure the legal integrity of their family unit.  While a broader statute confirming the enforceability of gestational surrogacy agreements would be preferable, this simple amendment to the parentage act would be a great start.