By Robert O’neill, Associated Press Writer, Herald News
Boston – In a significant victory for the rights of surrogate parents, the state’s highest court unanimously ruled Friday that a couple whose twins were born to a surrogate mother are the children’s legal parents from the moment of birth.
The Supreme Judicial Court also urged the Legislature to draft new laws to address advances in reproductive technologies.
Maria and Steven Culliton filed suit before the twins’ July 23 birth, asking for their names to be placed on the birth certificates. A Family Court judge refused, but ordered that the birth certificates be left blank until the issue was settled.
The Cullitons’ names can now appear on the certificates.
In Massachusetts, like 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. Under the law, a woman is not allowed to give up the parental right before birth.
The genetic parents then have to go to court to obtain a new birth certificate with their names on it and sometimes need to adopt their own child.
Justice John M. Greaney, writing for the court, said the existing adoption laws were not intended to resolve the Cullitons’ situation.
The decision said the Cullitons were the sole genetic parents of the children, the surrogate agreed with their request, and no one, including the hospital, contested their complaint.
“What it means to me personally is that I don’t have to adopt my own children, and that’s huge,” Marla Culliton said. “I’m happy to have done it, I’m sad that we had o go through it.”
The Cullitons’ lawyer, Melissa R. Brisman, said the decision was a “great victory for reproductive rights.”
The decision significantly extends the rights of surrogate parents in Massachusetts, legal observers agreed.
“There’s a big issue (over) who’s the real mother’” said Elizabeth Bartholet, a Harvard University law professor, specializing in adoption and reproductive technology. “This court resolves the issue by saying that the intended social mother is the mother.”
The ruling also validated commercial surrogacy arrangements, which are still controversial in this country and are banned in many other countries, Bartholet said.
The Cullitons hired a surrogate, referred to in court papers as “Melissa,” after Marla had six miscarriages.
The woman, who agrees she has no parental rights, was implanted with an embryo created from the couple’s sperm and egg.
The Cullitons asked that their names appear on the children’s birth certificate immediately after the birth, and that they be recognized as the children’s legal parents from the moment of birth.
They said genetic parents should have the right to decide how and when to tell children about their being born to a surrogate.
But Family and Probate Judge John Cronin questioned whether he had the power to determine parentage before birth or the authority to order a hospital list only the genetic parents.
Cronin acted prudently in seeking clarification on the law, as the state’s laws in this case were “sparse and not altogether consistent’” Greaney wrote.
The court described the state’s paternity statute as an “inadequate and inappropriate device to resolve parentage determinations of children born from this type of gestational surrogacy.”
The twins, who would technically be born out of wedlock because the surrogate was not married when she gave birth, were indisputably the children of a married couple, the court said.
“The Legislature is the most suitable forum to deal with the questions, as yet unlitigated, by providing a comprehensive set of laws that deal with medical, legal, and ethical aspects of these practices,” the court said.
Bartholet criticized the court’s ruling, agreeing that it was a matter best left to legislative bodies.
“I don’t think the court should be making such decisions,” she 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.