SJC quandary: what determines motherhood
By Kathleen Burge, Globe Correspondent, The Boston Globe, MA, August 29, 2001

Case pits genetics vs. legal precedent

The twins were created entirely from the parents who are now raising them: his sperm, her eggs. But then the tiny embryos were implanted in another woman, one who loaned them her womb and eventually gave birth to them.

Now barely a month old, a simple question about their identity is before the state’s high court: Who is the mother? The woman who desired to have the babies, whose eggs created them? Or the woman who grew them inside her and then gave birth?

In an age when science is creating many new ways for people to become parents – donated eggs, donated sperm, gestational carriers, artificial insemination – the Supreme Judicial Court next week will for the first time look at whether a genetic mother can replace a birth mother on a baby’s birth certificate. It’s a designation that brings legal rights to a child.

There is no dispute about who should have custody of the twins. Everyone involved in the case – the genetic parents, Maria and Steven Culliton, the birth mother, and the two hospitals that cared for her – all agree that the Cullitons should be listed on the birth certificate.

But a probate judge, parting from the recent decisions of many of his colleagues, refused to issue that order, ruling on July 12 that the state law didn’t allow it. The only applicable law, says that birth mothers cannot legally give up their children until four days after the birth, he wrote.

“The genetic parents in this case are essentially asking this court to ignore the presumption that the birth mother is the ‘mother’ and to find that the birth mother has no rights whatsoever to the child,” Essex Probate and Family Court Judge John C. Cronin wrote. “Troubling to this court is that they seek these determinations prior to the birth of the child.”

He was also troubled that the Cullitons paid the gestational carrier $14,000 for living expenses – including medical costs, lost wages, and maternity clothes – related to carrying the twins and giving birth.

“We were shocked,” said lawyer Melissa Brisman, who represents the Cullitons, saying that such surrogate arrangements are now routine.   

In their legal briefs, the Cullitons argue that not only does Cronin’s ruling deny them the right to be the parents of their children, but it forces the gestational carrier, Melissa Carroll, to take on an unwanted role as the children’s mother.

The Cullitons, who live north of Boston, and Carroll signed an agreement that she would have no legal rights to the children.

Around the nation, courts have fashioned answers from the murky mix of genes and intentions and the best interests of children. Massachusetts, the SJ ruling may determine whether the Cullitons will have to adopt their genetic children from the woman who gave birth to them. The decision may also affect gay couples who have sometimes successfully petitioned courts to allow two same-sex parents to be listed, from birth, on the birth certificates.

“Where so many people are facing fertility problems and having to look to reproductive technology to have children, the law really hasn’t caught up with reality,” said Joyce Kauffman, a Cambridge lawyer who has worked on assisted reproduction cases like the Cullitons’.

The twins arrived nearly two months early on July 23. Known in court records as Baby A and Baby B, they still have no birth certificates. They cannot get Social Security cards, which means their parents cannot claim them as tax deductions.

The Cullitons turned to a gestational carrier – a woman who carries the baby in her womb but has no genetic link to it, because Marla Culliton was medically unable to carry a child to term, according to court records. But they didn’t foresee the legal complications, Brisman said. The Cullitons declined to comment.   

Officials at the state Department of Public Health have said they will submit written arguments to the court, but yesterday wouldn’t say what they would argue.

Although there are no statistics, judges in similar cases have often issued orders before the births allowing the genetic parents to be listed on the birth certificates. Brisman said she’s seen a dozen such orders in Massachusetts; other family lawyers agree the orders are not uncommon.   

These orders, obtained before birth, save the intended parents the expense and emotional difficulties of later adopting the children.

Cronin also noted in his decision that other states’ higher courts have ruled differently on the issue. While a 1993 California court upheld a similar pre-birth order, a court in New Jersey rejected one last year.

Specialists agree that the law is unclear on these tangled issues of motherhood. “At stake is how courts should react in the absence of definitive legislation and whether courts want to facilitate these kinds of arrangements,” said Elizabeth Bartholet, a professor at Harvard Law School.

Since no one has opposed the Cullitons’ legal case, the SJC next Thursday will only hear one side argued – a circumstance that concerns Bartholet. “You get courts making a decision in a context where they’re not getting a wide range of viewpoints,” she said.

But dissenters may be hard to find. Although Cronin cited a New Jersey case where a judge had rejected a similar order, legal specialists say that’s rare. Melanie Blum, a reproductive law lawyer in California, said she’s never seen a case where a judge wouldn’t grant an order when all parties agreed.

“As a lawyer, you look at this and say, ‘Why would a judge not want to do this?’” she said. “It’s illogical.”