The Connecticut Supreme Court unanimously ruled on January 7 that state laws governing parental status authorize listing a same-sex co-parent on the birth certificate of a child conceived pursuant to a gestational surrogacy agreement, even though that parent has no genetic relationship to the infant. The court rejected the state’s argument that the co-parent would have to go through a second-parent adoption proceeding after the birth in order to be listed.
A gestational surrogacy agreement spells out the responsibility of a woman who carries an embryo resulting from the fertilization of an egg harvested from another woman to surrender the child to the intended parents after its delivery.
Connecticut is unusual in affirmatively taking account of gestational surrogacy agreements — unlike neighboring New York, which makes such agreements, and indeed all surrogacy agreements, unenforceable.
In the case before the high court, Anthony Raftopol and Shawn Hargon, a same-sex American couple residing in Romania, made a gestational surrogacy agreement with Karma Ramey, a Connecticut resident. Raftopol’s sperm was used to fertilize eggs from a third-party egg donor. Two of the three embryos implanted in Ramey resulted in the birth of twins.
Under the gestational surrogacy agreement, Ramey agreed to terminate her parental rights as a birth mother and allow a substitute birth certificate to be issued. Prior to the delivery date, Raftopol and Hargon applied in trial court for an order to be named as the two parents on the substitute certificate. The state appeared in trial court objecting to Hargon being named a parent, arguing that the court did not have jurisdiction to list him or to terminate the parental rights of Ramey, the egg donor, and any husbands either woman might have, who were not parties to the proceeding.
New Haven Superior Court Judge James G. Kenefick, Jr., rejected the state’s arguments, ruling that the gestational agreement was valid, Raftopol was the genetic and legal father of the children, Hargon was the other legal father of the children, and Ramey is neither the genetic nor legal mother of the children. Kenefick ordered the Department of Public Health to issue the replacement certificate listing both men as the parents.
The state appealed to the court of appeals, but the State Supreme Court took up the case directly. The high court was unanimous in affirming Kenefick’s decision, but divided about the reasoning. The majority, in an opinion by Justice C. Ian McLachlan, found ambiguities in the statutory language, but looked to both the logical implications of how those ambiguities might be resolved and the legislative history and concluded that Kenefick had correctly rejected the state’s argument that Hargon could only become a parent of the twins by adopting them. The two justices who concurred argued that when ambiguity lends itself to two possible meanings, one of which would produce an absurd result, then the other meaning is the one that the court should use; they said looking to the legislative history was unnecessary.
According to McLachlan’s opinion, the construction the state applied to the statute, if taken to an extreme, could produce a result in which a child could be born without any legal parent — clearly not what the Legislature intended — if a sperm donor other than an intended father was used to conceive the child. As a result, the court rejected Connecticut’s argument that only somebody with a biological relation to a child can be a legal parent in the absence of a valid adoption proceeding.
Both the majority and the concurring judges concluded that the most logical interpretation was to find that the “intended parents” named in a valid gestational surrogacy agreement should be considered the legal parents of the child and named on the substitute birth certificate. Some may see it as a revolutionary legal step to base Hargon’s parental status on the pre-birth gestational agreement, not on any genetic or biological ties or any legal procedure such as adoption.
Going forward, Hargon and any other such non-genetic co-parent involved in a gestational surrogacy agreement in Connecticut can be recognized as a legal parent from the moment of the child’s birth.
The Gay & Lesbian Advocates & Defenders, Lambda Legal, and private counsel from the Weltman Law Group in Boston and Horton, Shields & Knox in Hartford represented the couple. Several professional organizations involved in reproductive technology filed amicus briefs.