Court struggling with birth-certificate case
The Daily Texan, TX, Thursday, August 30, 2001

State law says only birth mother should be listed on papers

BOSTON - A month after they were born, a baby boy and his twin sister still have no birth certificates. The paperwork is being held up in a dispute that could change the legal definition of "mother" in Massachusetts.

In Massachusetts and many other states, only the woman who gives birth is presumed to be the mother and can have her name on the original birth certificate. The law does not address instances in which women become mothers by having their embryos implanted in a surrogate. Marla and Steven Culliton hope to change that.

They hired a surrogate after Marla had six miscarriages. The surrogate was implanted with an embryo created from the couple's sperm and egg, and on July 23 she gave birth to the Cullitons' twins.

The surrogate, known in court as "Melissa," has no biological link to the children, and she agrees she has no parental rights.

Still, a family court judge refused to allow the Cullitons' names on the original birth certificates.

"It is one of a new wave of cases which are forcing courts throughout the country to wrestle with the meaning of such basic, fundamental terms as 'mother,' 'paternity' and 'maternity' as a result of technological advances in reproductive medicine," said Melissa Brisman, the Cullitons' attorney.  

"What we're asking this court is, 'What does it mean to be a mother?' and 'Does the mere act of giving birth give rise to motherhood?"'  

The state's highest court will hear arguments Sept. 6. In the meantime, the court blocked the hospital from issuing birth certificates for the twins. Generally in Massachusetts, the name of the woman who gave birth even if she is a surrogate is put on the birth certificate. Then the genetic parents have to go to court to adopt the child and legally sever the surrogate's parental rights.
The original birth certificate is then sealed by the court and can be opened only in extraordinary circumstances by a judge's order and a new one with the names of the genetic parents is issued.

The Cullitons, who would not discuss the case and will not release the names of their children, do not want the surrogate's name ever to appear on the birth certificates, arguing that genetic parents should have the right to decide how and when to tell children about their being born to a surrogate.

"If ever someday these kids get a look at their original birth certificates, we want them to be accurate. It doesn't tell the story of who their parents are," Brisman said.  

Surrogacy laws vary widely from state to state. Some states require genetic parents to go to court before birth to obtain a "pre-birth order" to have their names on the original birth certificate, without the name of the surrogate. Others require DNA testing after birth to document the child's parentage before genetic parents can be listed on the birth certificate.

California is among the states with the most advanced laws. Couples can establish parenthood any time after the start of pregnancy with a court petition. A judgment is usually issued within 24 hours.

The process grew out of a California Supreme Court ruling in the 1990s that said the state should look at "the intent of the parties" at the time they begin the surrogate process to determine the legal parents.

In the Culliton case, a family judge questioned whether he had the power to determine parentage before birth or the authority to order a hospital to list only the genetic parents. Some other judges in Massachusetts have granted pre-birth orders in similar cases, but Judge John Cronin wanted a higher court to clarify the law.

Andrew Vorzimer, a Beverly Hills, Calif., lawyer who specializes in reproductive law, said lawmakers in many states are reluctant to pass legislation that changes traditional notions of motherhood.
"There is still a large portion of our population that is opposed to surrogacy, and for that reason, it's been a subject that's taboo," he said.

Joan Barnes of Kennesaw, Ga., said she and her husband had to sue to establish parental rights after their son was born in 1992, even though they thought they had covered their legal bases ahead of time.

They had presented affidavits to the hospital from a clinic showing that their embryo had been transferred to a surrogate, and Barnes said she was assured that only their names would appear on the birth certificate.

"The minute the child was born, the hospital reneged on that commitment, saying they could only put the woman who birthed the baby's name on the birth certificate," said Barnes, who is now president of the American Surrogacy Center, a national advocacy group.

A year later, when they had their second son through a surrogate, they successfully petitioned for a pre-birth order, and their names were put on the original birth certificate.

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