You can also read it here: http://www.ctlawtribune.com/Supplements/Health_051109.pdf
A gestational carrier agreement is an agreement covering the birth of a child through surrogacy, wherein an individual or a couple enters into an agreement with a 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 intended parent or parents use an egg and/or sperm donor and therefore, at least one of the intended parents is not genetically related to the child to be born. In either case, counsel has brought complaints seeking the issuance of pre-birth orders pursuant to Connecticut General Statute §7-48a for genetic and non-genetic intended parents of children being carried by gestational carriers.
Currently, Connecticut is in a state of disarray regarding the issuance of these pre-birth orders by the Superior Court. For about the past six months, the state Department of Health has objected to the Superior Court issuing orders unless the intended parents are genetically related to the child or the children.
At the Superior Court level, there is a split of authority regarding whether Conn. Gen. Stat. §7-48a, as written, allows this form of relief. The Connecticut Attorney General’s Office, through the Department of Health and Judge John D. Boland in Oleski v. Hynes (2008), has advocated that the law 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.
To the contrary, Judge Lloyd Cutsumpas, in Griffiths v. Taylor (2008), and an overwhelming number of Superior Court judges have advocated that Connecticut allows for a finding of intended parentage and have signed orders supporting the same. Recently, however, once these orders are issued, the state appeals the ruling of the Superior Court, thereby delaying the implementation of the Superior Court’s order and leaving the gestational carrier as the legal parent.
This office currently represents two intended parents at the Appellate Court level (See Raftopol v. Ramey, et al). At the trial court level, Judge James G. Kenefick, granted the intended parents’ petition for a pre-birth order and the state subsequently appealed. Because the intended parents lived in Romania, they were unable to obtain jurisdiction for a co-parent adoption or enter into a same sex adoption based upon Romanian law. Accordingly, the non-genetic father has no legal parental rights until Appellate Court rules on the state’s appeal.
Until the Appellate Court hears argument on these matters and issues a decision, no representations can be made regarding the ability of any attorney to obtain a pre-birth order without the matter being appealed. Even after the Appellate Court rules, the party denied relief can petition the Supreme Court. In the final analysis, the time frame for a binding ruling from a higher court could take more than two years.
Even with the difference in viewpoints, both the courts and opposing counsel to these actions agree 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.
This office has lobbied legislators to clarify Conn. Gen. Stat. §7-48a. Rep. Thomas Drew (D-Fairfield) introduced House Bill 1137 which sought to clarify this law. The bill would authorize 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. Currently, the bill awaits action by the state Senate. Hopefully, the legislature will take action to ensure that courts are provided with guidance in implementing these orders and are not subject to analyzing and interpreting legislative intent.
More and more individuals who either cannot conceive or cannot 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 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.
0 comments:
Post a Comment