By Kathleen Burge, Globe Staff
The Boston Globe, MA, Octber 13, 2001

Creating law where there was none, the state’s highest court ruled unanimously yesterday that the genetic parents of twins – not the woman who carried and delivered them – are the children’s legal parents.

The Supreme Judicial Court is apparently just the second state high court to rule that a woman who agrees to be a gestational carrier, but is not genetically related to the babies, is not the legal mother. Legislatures in a few other states, including Florida and Illinois, have made similar determinations.

Recognizing that families relying on new technology to have children are facing legal dilemmas not yet addressed by the law, the SJC prodded state lawmakers to regulate the murky new world of reproductive technology.

Procreation “isn’t always happening in the bedroom, and it isn’t always happening without the assistance of a third person,” said Susan Crockin, a reproduction technology lawyer who had urged the court to rule as it did. “This is an enlightened decision recognizing that people are, in fact, creating families in novel ways.”

Yesterday’s decision was the court’s latest foray into the quagmire created by the collision of law and science. In this case, the court concluded that justice would be served by relying on genetics.

But in other cases, the justices have ruled DNA alone does not bind families together. Earlier this year, the SJC heard the case of a Cambridge man who learned the 7-year-old girl he had thought was his daughter was fathered by another man.

The court ruled it was in the child’s best interest for him to remain her legal father and continue paying child support.

In 1999, the SJC granted visitation rights to two non-parents – one an aunt, another a lesbian who had helped raise her former partner’s biological child.

The most recent decision resolves the legal status of the twins in the case, now 3 months old, and allows them to finally get birth certificates.

The babies were created with the eggs and sperm of their parents, Marla and Steven Culliton, and implanted in another woman. The couple sought a gestational carrier after Marla Culliton had six miscarriages.

A gestational carrier is different from a surrogate, whose eggs are used to create the embryo, making her the baby’s genetic mother.

Yesterday’s celebratory press release from the Cullitons’ lawyer, Melissa Brisman, read like a birth announcement: “We are pleased to inform you that….Marla and Steven Culliton have been declared the legal parents of their twin,” it began.  

The gestational carrier, Melissa Carroll, did not dispute that the Cullitons were the legal parents of the children she delivered. But before the twins were born, when the Cullitons asked an Essex judge to order that they, and not Carroll, be listed on the original birth certificates, he declined.

Probate Judge John C. Cronin ruled that he did not have the legal authority to make such a ruling. Under the only applicable law – adoption law – birth mothers cannot legally give up their children until four days after birth, he wrote.

The Cullitons were not the first couple to request such an order, Brisman said. Many probate judges have allowed them, she said, but some, like Cronin, have not. “Whether or not you became the parent of your own biological child was based on which judge you got,” she said.  

Cronin’s decision would have required the Cullitons to adopt their genetic children. The Cullitons appealed, and the SJC took their case.

“Reproductive advances have eliminated the necessity of having sexual intercourse in order to procreate,” Justice John Greaney wrote. “It is apparent…that [current law] is simply an inadequate and inappropriate device to resolve parentage determinations of children born from this type of gestational surrogacy.”

Greaney listed the current laws that don’t apply: laws governing adoption, children born out of wedlock, and those produced through artificial insemination. Instead, the justices decided, Cronin could have ruled under the broad, common-law powers of courts to make fair decisions.

But the justices made clear that their decision was confined to the circumstances raised in the Cullitons case. Greaney noted that no one, including Carroll, contested the Cullitons request to be listed on the initial birth certificates.

In California, whose highest court has considered a similar issue, a custody dispute arose between the genetic parents and the gestational carrier.

In the Cullitons’ case, the justices pointed out that the twins were created entirely from the eggs and the sperm of the couple. Carroll loaned the babies her womb, but unlike a traditional surrogate mother, she did not contribute eggs to make the twins.

But not everyone was pleased with the decision. Wendy Murphy, a lawyer who teaches reproductive technologies from a feminist perspective at the New England School of Law, said she fears the decision could have harmful effects.

“It does lead us a little bit down the path” of treating unborn children like commodities, she said, subject to contracts between people who want to have children and women who carry them.