The following is the testimony I presented to the committee:
Mr. Chairman, members of the committee, I would like to begin by thanking you for giving me the opportunity to speak on behalf of this important legislation that seeks to clarify the provisions of Conn. Gen. Stat. 7-48 as it relates to the issuance of replacement birth certificates for intended parents.
Raised Bill 1137 seeks to amend existing law by authorizing a court of competent jurisdiction to make a finding of intended parentage for parents of children conceived through assisted reproduction, and pursuant to a gestational carrier agreement.
A gestational carrier agreement is an agreement covering the birth of a child through surrogacy, that is, an individual, or a couple, enter into an agreement with another woman to carry and give birth to their child. In some cases, the two intended parents are the genetically related parents of the child to be born. In other cases, the two intended parents use an egg donor and therefore, the intended mother is not genetically related to the child to be born.
Currently, there is a split of authority at the Superior Court level regarding whether the statute as written allows this form of relief. The Connecticut Attorney General’s office through the Department of Health and Judge Boland in the opinion Oleski v. Hynes has advocated for the position that Conn. Gen. Stat. 7-48 only allows for a genetic parent to be named on a replacement birth certificate and that the correct procedure for a non genetic parent to obtain parental rights is through a co-parent adoption in the Probate Court.
Accordingly, if an intended parent utilizes an egg or sperm donor to conceive the child that is being carried by the gestational carrier, the non genetic parent would not be authorized to be placed on the replacement certificate. Therefore the child would have the genetic parent, if any, and the birth mother (gestational carrier) as his or her legal parent. The non genetic parents would then have to adopt the carrier’s child via a co-parent adoption through the probate court.
To the contrary, our position and that of an overwhelming number of Connecticut Superior Court judges is that Conn. Gen. Stat 7-48 currently provides for a cause of action for intended parentage. I have provided a copy of Judge Cutsumpas’ decision in Griffiths v. Taylor which presents a concise overview of our law firm’s position on the current state of the law.
Even with the difference in viewpoints, both the courts and opposing counsel to these actions agreed that the correct manner to address this issue is though the legislative process and not the courts. If the legislature does choose to address this issue, the constituency can then decide how best to clarify this legislation as opposed to judges, clerks and lawyers who attempt to infer intent through legislative histories. If the statute is not clarified numerous issues will continue to serve as problems for parties to a gestational carrier agreement.
First, the obvious problem of a gestational carrier being legal and financially responsible for a child that is not genetically related to her and that she was not expecting to be responsible for.
Second, without a valid birth certificate establishing legal parentage, the child may not be able to secure health insurance through the intended parent’s carrier nor will they be able to obtain other legal documents such as a passport or social security card.
Thirdly, the parents would not have the right to make medical decisions for their child nor take their child to the doctor.
Finally, the best interests of the child. The position that a non genetic gestational carrier should be the legal parent of a child conceived through ART for the intended parents is an arcane view that does not comport with modern scientific technology.
More and more individuals who can either not conceive or not carry children to term are utilizing assisted reproductive clinics to make their dreams of a family a reality. To ignore this new and progressive field of medicine and cling to arcane and past conservative construction of the law does a disservice to the children conceived through this form of technology and the intended parents who seek to raise their children in a loving home.
Accordingly, I urge the members of the committee to support this piece of legislation and would be happy to answer any questions you may have.
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