DC considers new surrogacy legislation

Surrogacy is a crime in the District of Columbia.   That's likely to change later this year.  Yesterday the DC City Council Committee on Public Safety and the Judiciary held a hearing on a bill that would revoke the ban and regulate surrogacy -- well at least regulate gestational surrogacy.  In my testimony, I urged the City Council to include traditional surrogacy in the new law.  Here's my testimony in full:

Testimony by Nancy D. Polikoff on Bill 20-32

“SURROGACY PARENTING AGREEMENT aCT OF 2013”

a/k/a “Collaborative Reproduction Act of 2013”

D.C. City Council Committee on Public Safety and the Judiciary

Thursday, June 20, 2013 

Thank you for the opportunity to present testimony on Bill 20-32, both the original bill and the working draft prepared by Committee staff. 

My name is Nancy Polikoff.  I am Professor of Law at American University Washington College of Law, where I have taught Family Law for more than 25 years. I also teach a course on Children of LGBT Parents. I have been a D.C. resident for more than 40 years, and a member of the District of Columbia Bar since 1975.  I have devoted the bulk of my career to the legal issues facing lesbian, gay, bisexual, and transgender families, and especially LGBT parents.  Over the past several years I have worked with the Council of the District of Columbia Committee on Public Safety and the Judiciary on numerous pieces of legislation affecting LGBT families, including the Domestic Partnership Judicial Determination of Parentage Act of 2008.[1]

I unequivocally support the decriminalization of surrogacy in the District of Columbia.

With my limited time today, I would like to focus on two specific points.  I will submit supplemental materials at a later date.  Those points are: 1) gestational and traditional surrogacy should be regulated equally in this legislation; and 2) a woman who bears a child should have a brief period of time after the child is born to assert a claim of parentage. 

Traditional and gestational surrogacy should be regulated equally

The working draft improves original Bill 20-32 by providing detailed requirements and procedures, but it does so only for gestational surrogacy.  It decriminalizes traditional surrogacy, but there are no rules or regulations for implementing traditional surrogacy arrangements.

I strongly believe that gestational and traditional surrogacy should be treated the same. I have three general categories of objection to distinguishing between traditional and gestational surrogacy.  One is conceptual inconsistency with all other LGBT parenting work.  The second is accessibility to the greatest number of intended parents. The third is the health of the woman who will become pregnant.

One: For more than 20 years advocates for lesbian and gay parents have emphasized that genetics is neither necessary nor sufficient to create parentage.  In 2008 and 2009, I worked with this committee on parentage legislation, which the City Council enacted, ensuring that when a lesbian couple plans for a child conceived through donor insemination then both women are the legal parents of that child. The semen donor in such instances is not a parent, absent a written agreement to the contrary. The position that a semen donor is not a parent is consistent with the law in numerous other jurisdictions.  This demonstrates the LGBT family law position that a genetic connection is not sufficient to create parentage. 

In states that do not make it easy for both women to be legal parents, there has been much litigation when a couple’s relationship ends. Unfortunately, the biological mother sometimes claims at that point that she is the child’s only parent, because her former partner lacks a genetic connection to the child. Every national LGBT legal rights organization in the country supports and represents nonbiological mothers against such claims, taking the position that a genetic connection is not a necessary component of parentage.

The only difference between a “traditional” surrogate and a “gestational” surrogate is genetics: the pregnant woman in traditional surrogacy has a genetic connection to the child and the pregnant woman in gestational surrogacy does not.  Legislation facilitating gestational surrogacy but not traditional surrogacy assumes that the experience of gestating a fetus can be the subject of a binding contract, so much so that in most laws, as well as in the working draft of Bill 20-32, the gestational surrogate can never change her mind and assert any claim as a parent of the resulting child.  In other words, from this point of view, gestation is not a sufficient connection to create parentage. 

The District of Columbia has already decided, along with many others jurisdictions, that genetics is not a sufficient connection to create parentage.  A semen donor who decides after conception or after birth that he wants to assert a parentage claim to the resulting child will lose in court.  Our law, as many others, says he is not a parent.  He may have a genuine change of heart.  It does not matter.  He is not a parent.

To be consistent, the genetic connection a traditional surrogate has to a child also cannot be sufficient to create parentage.  Omitting traditional surrogacy from legislation may reflect a belief that a traditional surrogate’s acts of gestating the fetus, when added to her genetic connection, create a claim to parentage that cannot be the subject of contract. But this belief can only be premised on the conclusion that gestation adds something of legal consequence to her genetic connection.  But the premise of enforceable gestational surrogacy agreements is that gestation cannot give rise to a claim to legal parentage.

Either gestating a fetus until birth is an act of caregiving that creates a claim of parentage or it does not.  I believe that it does, as I will get to in a moment.  But those who say it does not, and still want to distinguish between traditional and gestational surrogacy, are taking a position on the importance of the woman’s genetic connection to the fetus she gestates that flies in the face of over 20 years of advocacy on behalf of same-sex couples raising children.

If there were no downsides to omitting traditional surrogacy, perhaps the above inconsistency could rest in the domain of theoretical, academic interest.  But there are two significant downsides, to which I now turn.

            Two: The accessibility issue is simple.  Gestational surrogacy, whose costs easily exceed $100,000, is limited to the richest among us.  The intended parents must pay the medical costs of extracting eggs from an egg donor, creating embryos in vitro, and inserting those embryos into the gestational surrogate. They also must pay the egg donor for her eggs. Those who do not have the wealth to pursue this form of assisted reproductive technology want children and can be good parents. A gay male couple of modest means (as well, of course, as an infertile heterosexual couple) should have the ability to plan for and create a child using the same low-cost method that a lesbian couple uses:  insemination of a woman with semen from a man. 

            I would add the following.  People are using traditional surrogacy to have children and will continue to.  The only issue before this committee is whether the law of the District of Columbia will give those people clear guidance and procedures, creating more predictable outcomes for families and children.  I support the eligibility requirements for the parties in the working draft of Bill 20-32 and believe they should be extended to the parties to a traditional surrogacy contract.  Even though some people will continue to conceive children without fulfilling the eligibility requirements and other criteria, that is no reason to abandon those couples who are more than willing to follow prescribed procedures but cannot afford gestational surrogacy.  With no such regulation in place, every time a gay male couple wants to conceive and raise a child, and that couple cannot afford gestational surrogacy, they are on their own, as is the woman who agrees to help them become parents.  I do not believe the City Council should leave to their own devices that portion of this city’s population.

             Three:  For a woman who wishes to carry and gestate a fetus for intended parents, traditional surrogacy requires less medical intervention, with fewer attendant risks, than does gestational surrogacy.  If a woman is willing to be a traditional surrogate, telling her she must undergo these interventions makes her submit to procedures that are invasive and unnecessary.

A woman who bears a child has a claim as a parent of that child

            When a surrogacy arrangement works as clearly intended, by parties who have met the relevant eligibility criteria, the intended parents are the child’s legal parents.  The advantage of surrogacy legislation is that it streamlines the process for all who deal with the parties, including the Vital Records office, so that accurate legal documentation of the child’s parentage is created.  The intended parents are the child’s legal parents and no adoption proceeding is necessary to establish that.

But legislation must also address what happens if there is a dispute among the parties.  The working draft of Bill 20-32, as is common, provides for specific performance of an agreement that meets the requirements of the law.  Of paramount importance is the inability of the surrogate to assert a claim of parentage of the child she gives birth to.

Unlike gamete donation of either egg or sperm, gestation requires acts of caring for a growing fetus.  I believe those acts entitle that caregiver, the pregnant woman, to claim parentage of the resulting child. Let me be clear that I believe that properly screened surrogates, who have previously given birth and who satisfy a mental health professional that they are suitable for the task, are highly unlikely to change their minds.  In fact, I believe that those involved in the surrogacy process will take extraordinary care in selecting surrogates – as reputable agencies do now – if the consequence of selecting without that care is a broken contract.  The most desirable outcome of a surrogacy contract is that all involved will fulfill the terms of their agreement.[2]

I do believe it is reasonable to hold a surrogate to her agreement to relinquish the child unless she makes her position known at the time of the child’s birth or shortly thereafter.[3]  The child is entitled to stability, and a surrogate loses any claim to be a parent, whether she has a genetic connection to the child or not, once that time has passed.  If the surrogate does assert parentage, the intended parents nonetheless remain parents of the child, and if there is no agreement among the parents, custody would be determined by the Superior Court according to the best interests of the child.

I would close by saying that if this committee disagrees with my position on the parentage claim of a surrogate, I nonetheless believe that traditional and gestational surrogacy should be treated alike under this legislation.  If specific performance is an appropriate remedy for a gestational surrogacy contract, it is an appropriate remedy for a traditional surrogacy contract as well.

I look forward to working with this committee to develop the best possible surrogacy legislation for the District of Columbia.  Thank you for the opportunity to testify on this important legislation.            

---

[1] I would like to thank Lauren Nussbaum, WCL Class of 2014, for our discussions in which I developed some of the views I express herein (which are not entirely consistent with her own).

[2] Even with surrogacy unlawful in the District of Columbia, couples living in the District of Columbia have used surrogates in other jurisdictions to have children.  One of the earliest second-parent adoptions in DC, in the early 1990s, was a gay male couple who had a child using a surrogate. There was no disagreement among the parties, and the surrogate relinquished all parental rights in the proceeding in which the genetic father’s male partner adopted the child.

[3] I am aware of two states that have such provisions.  Florida (for traditional surrogates only) provides a 48 hour period.  New Hampshire (which does not allow donor eggs but does allow surrogacy using the egg of the intended mother or the surrogate) provides for a 72 hour period. In the case of a birth without complications, even 24 hours should be sufficient.

New Jersey judge awards full custody of twins born through surrogacy to gay father

The New Jersey case of A.G.R. v. D.R.H. & S.H. is a story of much that can go wrong.  At the center of the case are two twin girls, born in October 2006.  There has been litigation about their parentage and care since they were five months old.  The girls were born to AGR, who was a gestational surrogate for her brother, DRH, and his partner, SH, who is the children's biological father.  AGR filed for custody of the children, and two years ago the trial judge ruled that the documents AGR signed agreeing to be a gestational surrogate were unenforceable in New Jersey and that she is the children's legal mother.  Twenty years ago, in the famous Baby M. case, the New Jersey Supreme Court voided a traditional surrogacy contract as against public policy.  Since then, no one seeking an enforceable surrogacy arrangement would make such arrangements in New Jersey, but that is what these three people did.  The men argued that their situation was distinguishable because it was gestational surrogacy, but the judge didn't buy it.  For the past two years, the children have gone back and forth between the two homes.

Well this week the same judge awarded full legal and physical custody of the children to SH.  He ruled that joint custody was inappropriate because the parents could not agree, communicate, or cooperate.  AGR received generous and fairly typical visitation rights -- every other weekend, three hours on a weekday evening, four weeks in the summer.

One of the things I find most interesting about this case is the plan the men always had that the gestational carrier AGR, aka DRH's sister, would play a large role in the children's lives.  It reminded me of the scenario that is more typically of lesbian couples who use a known donor to conceive; sometimes they expect him to be involved with the child but not to be a parent with legal rights to challenge their decisions.  This is less common among gay male couples using a surrogate, although Judith Stacey's research on gay men in southern California (reported in her most recent book, Unhitched), did uncovered one such family, where the children had relationships with both the gestational surrogate and the egg donor.  SH testified that AGR was expected to be a "special aunt."

Some facts emerged in this opinion that were not in the earling ruling.  I learned in the third paragraph of this 15 page single spaced opinion that AGR was a lesbian.  When she first explored being a surrogate for her brother and his partner in 2004 she was in a four year relationship with a woman that broke up about a year later, shortly before she began the fertility treatments in preparation for the surrogacy.  In 2008, however, she returned to her earlier Baptist faith, renounced her lesbianism, and began espousing negative views of both surrogacy and homosexuality.  (AGR is represented by the same lawyer who represented the birth mother in Baby M., who is also well known for his litigation and legislative work against abortion; I don't see evidence of Liberty Counsel or Alliance Defense Fund's involvement in this case, but the claims of ex-gay parents are a staple in their dockets.)

The judge was deeply concerned that AGR's negative views would have an adverse impact on the children.  AGR was living with her mother (who is of course also SRH's mother), and she, too, had very negative, biblically-based views of homosexuality. AGR said that if she got custody she would enroll the chldren in a Catholic school and take them to a Baptist church. At one point the judge referred to the twins as "special needs" children because of their unusual method of conception and family structure.  The judge held that SH always looked at things from the perspective of the children's best interests.  On the other hand, he found that it was "inevitable" that the strong views of SH and her mother, including that SRH would burn in hell, would have a damaging effect on the children and would make them feel ashamed of themselves.

The plaintiff and defendants each called an expert witness and there was also a court appointed expert, who supported sole custody for the father and his partner (and said it should happen as quickly as possible).  Dr. David Brodzinsky, a well-known expert on adoption who strongly supports LGBT parents, testified for the fathers.  I was very disturbed by one thing he said.  The judge wrote that he testified that "being genetically related give SH an advantage over plaintiff because children relate better to genetic parents."  What?? I'd like to know what he based this on.  I've never heard this view espoused in all the cases between bio and nonbio moms, nor has any court relied on it, so it was pretty shocking to read it here...and from an  expert well known for his work on adoption.

As for the expert for AGR, the judge did not agree with many of his conclusions, but even he said that AGR should not say homosexuality was a sin in front of the children and that taking them to an anti-gay church would be bad for them.  The court appointed expert was deeply disturbed by the impact of AGR's negative views of homosexuality, but he also said something that bothers me -- that SH's two-parent household was better because AGR works during the day (SH was a stay-at-home dad).  This reasoning has been improperly used against divorced moms, gay and straight, when their ex-husbands remarry, and I don't want it in custody decisions about our children.

The judge's findings are so detailed that there is no chance they would be reversed on appeal.  I do not know if the fathers are planning to appeal the finding that AGR is their mother, or if they even can at this point.  When the child at the heart of Baby M. turned 18, she consented to her adoption by her "stepmother" so that her legal parentage could match the family she really had. Perhaps these children will do the same...

Texas Supreme Court lets stand lower court order registering the parentage judgment of a gay male couple

On September 30, the Texas Supreme Court denied review in a case brought by the nonbiological father of a child born using his ex-partner's sperm to a California surrogate mother. The couple, Jerry Berwick and Richard Wagner, lived in Texas, and had a child in December 2005 pursuant to a gestational surrogacy contract in California. Berwick is the biological father. Pursuant to agreements filed in the California court by the two men, the surrogate, and her husband, the California court issued a pre-birth parentage judgment naming the two men the child's legal parents. The order was stayed until the child's birth, as is customary with a pre-birth order. Upon the child's birth, a birth certificate was issued naming both men as parents (although, oddly, Wagner was listed in the space denominated "mother.")

The couple raised the child as two parents in Texas until 2008 when Berwick ended the relationship. Ever since, he has been arguing that he is the child's only parent. And, as we have seen too often before, he is represented by the anti-gay Alliance Defense Fund (ADF).

Wagner, represented by Ken Upton in the south central office of Lambda Legal, filed to register the California judgment in Texas pursuant to a statute that exists in every state. Those statutes, part of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), mandate that every state register child custody judgments from other states and give them Full Faith and Credit. The ADF lawyers argued that the parentage judgment did not determine "child custody" and therefore did not fall under the statute. In a decision last February, the Texas Court of Appeals ruled in Wagner's favor. Because the California judgment established that the birth mother and her husband were not the child's legal parents, it did determine that Berwick and Wagner would have custody of the child and the "presumed" parents (the woman who gives birth and her husband) would not. It is that ruling which the Texas Supreme Court declined to review two weeks ago. According to the Texas Supreme Court website, Berwick can still file a motion for rehearing next week.

That's not the end of it. It never is with ADF (or its fellow traveler, Liberty Counsel, who represents Lisa Miller in the long-running Miller-Jenkins litigation.) Berwick is still arguing in the lower court that Wagner is not a parent. Stay tuned.

Wisconsin court leaves stand a parentage order for a nonbio mom but precludes such orders in the future

The most horrific part of last month's North Carolina Boseman v. Jarrell opinion against second-parent adoption was that it said the court that granted the adoption lacked "subject matter jurisdiction," which means that the order was void, along with all second-parent adoption orders, the moment it was granted. That wiped out every second-parent adoption in the state.

Well, within days of that opinion a Wisconsin appeals court ruled in Dustardy H. v. Bethany H. that the state does not allow a nonbio mom to obtain a parentage order, but it refused to vacate the order that a court had granted in 2004. The trial court did have subject matter jurisdiction, the appeals court ruled, and therefore, although the order was erroneously granted, it remains in effect because the bio mom did not challenge it in enough time.

Wisconsin does not permit second-parent adoption. So when Dusty and Beth had a child, Christian, by donor insemination in 2004 they filed a parentage petition and obtained an order from a trial judge that Dusty, the nonbio mom, was also Christian's parent. The trial court had two theories. First, it applied the state's donor insemination statute, which makes a husband the legal parent of a child born to his wife using donor insemination. It also used the "de facto parent" standard established in a 1995 visitation case and named Dusty a legal parent because she met that standard. These are both plausible theories supporting recognition of both of the Christian's parents. The couple's lawyer clearly sought some mechanism to protect Christian's emotional and economic security and the intent of this couple that their child have two parents.

When the couple split up they informally shared custody of the child, but in 2008 Dusty filed for joint custody and Beth responded by asking that the parentage order be declared void. Beth won, and Dusty appealed.

The appeals court said Beth was right on the law. It limited the insemination statute to husbands, and it said the "de facto parent" test could only support a visitation order, not a parentage petition. On the insemination issue, I blogged a little over a year ago about an Oregon appeals court ruling interpreting a similar statute to apply to the lesbian partner of a woman who gave birth through donor insemination. Unfortunately, the Wisconsin court ruled differently.

But -- and here is where it differed from the North Carolina court -- the Wisconsin court said the trial court that issued the parentage order DID have subject matter jurisdiction to do so. Therefore, it was a valid order unless appealed or unless Beth used a different statute to file for relief from that order within a "reasonable time," which she did not do. So Dusty remains Christian's mother. And similar parentage orders from Wisconsin courts, at least if they are several years old, cannot be challenged by a bio mom trying to get rid of her child's other parent. And if the couple remains together and has such an order it is valid for purposes of determining the right to government benefits, inheritance, or other matters flowing from the parent-child relationship.

It's worth mentioning again that this bio mom has destroyed a source of legal security for children of lesbian couples in Wisconsin while gaining nothing for herself. In the North Carolina case, the court vacated the adoption but ruled that the nonbio mom met the standard for obtaining a visitation order for her child, so the bio mom didn't get what she wanted there either. Instead she wiped out every second-parent adoption in the state, even for happily-still-together families.

And a note for gay male couples: Wisconsin has a surrogacy statute that allows a nonbio dad to obtain a parentage order when the child is born using a donor egg to a gestational surrogate. One of the country's most reputable surrogacy agencies is The Surrogacy Center in Madison, and they happily work with gay male couples.

British Columbia Attorney General's White Paper proposes explicit recognition of three parents

Hats off to New Jersey lawyer Bill Singer for alerting me to the article in yesterday's Vancouver Sun on an aspect of family law reform under consideration in British Columbia. While the article focuses largely on the possibility of a child having three legal parents, the White Paper released by the province's Attorney General in July, proposing a complete overall of the Family Law Act, is much broader than that. The new provisions would establish legal parentage in a variety of situations relevant to gay men and lesbians having children through assisted conception.

Here's a summary of the relevant parentage provisions:

• When a woman bears a child through assisted conception (but not surrogacy), her partner -- married or unmarried, same-sex or different-sex -- is presumed the child's other parent. The partner can overcome the presumption by proving that s/he did not consent to be the child's parent before the assisted conception took place.
• Sperm and egg donors are not parents.
• A woman who give birth is a parent, regardless of whether she is genetically related to the child.
• A birth mother who agrees to act as a surrogate can sign an agreement with the intended parent so stating before conception. After birth she can (but cannot be forced to) turn the child over to the intended parents and give her written consent that they are the child's parents. The intended parents are then the child's legal parents from birth.
• A donor of sperm or eggs, or a surrogate mother, can make a written agreement prior to assisted conception that the child will have three parents. In the case of a sperm or egg donor, the parents would be the donor, the birth mother, and the birth mother's partner. In the case of a surrogate mother, the parents would be the intended parents and the birth mother.

This White Paper is unusual in its explicit attention to the possibility of a child having more than two parents. Quebec has had a statute since 2002 that makes a woman's partner the legal parent of a child born through assisted conception, but it does not allow for a child to have three legal parents. (On the other hand, Quebec allows "assisted conception" to include conception through sexual intercourse where the man and the woman agree in advance that the man will not be the child's legal parent; the British Columbia proposal, like all other statutes I know, sharply differentiates parental status based on method of conception.) The District of Columbia statute does not explicitly state that a child can have three parents, but it does provide that a sperm donor is a parent if the mother and donor have a written agreement saying so, and it also provides that the birth mother and her partner are the child's parents if they consent in writing, so the statute is best read as allowing for three parents if all agreed so state in writing.

I really like the proposal's treatment of surrogacy, and here I know I diverge from some colleagues I highly respect. Surrogacy is permitted, but a birth mother can change her mind until after the child is born. And this is true even if she is a "gestational" surrogate -- one who is not genetically related to the child. I believe that caring for a fetus in utero is a form of parenting and the law should recognize that. The intended parents, however, cannot change their minds once they have signed the surrogacy contract. Once the child is born and the birth mother signs away her rights to the intended parents, they are the parents from the moment of the child's birth. This way the surrogate need not fear that she will be required a child should the intended parents later change their minds.

I know many people support strict enforcement of surrogacy contracts, but I like the British Columbia proposal for reasons other than respect for gestating a child. Surrogacy is best practiced by agencies that carefully screen and counsel potential surrogates; those careful practices reduce to practically zero the possibility that the woman bearing the child will change her mind. All the incentives should go in that direction, and the BC proposal does that.

Virginia really does enforce custody orders from other states

My post on the most recent Miller-Jenkins ruling explained that the history of that case is filled with Virginia court rulings that Virginia will enforce child custody and visitation orders properly entered in another state. In that case, the state was Vermont.

Yesterday, a Virginia appeals court again reiterated the basic principle of child custody law that every state must enforce the custody orders of other states. In Prashad v. Copeland, a woman who bore a now 5-year-old child as a surrogate mother for a gay male couple, argued that Virginia should not register custody orders from a North Carolina court to the extent that those orders confer parental custodial rights on the biological father’s partner. The North Carolina order was the result of a consent agreement signed by the three parties awarding primary legal and physical custody to the gay male couple and secondary legal and physical custody to the surrogate mother.

The trial court ruled that North Carolina had jurisdiction to issue the custody orders and that, as in Miller-Jenkins, the federal Parental Kidnapping Prevention Act and Virginia law require Virginia to give those orders full faith and credit. Prashad argued that, pursuant to Virginia’s Marriage Affirmation Act and Marriage Constitutional Amendment, the North Carolina orders need not be honored. The trial court rejected that argument, and yesterday's appeals court ruling affirmed the trial court. The opinion notes:

Although there has been much discussion concerning homosexual marriage and same-sex relationships, both at the trial level and before this Court, neither of the parties is seeking to have the civil union between Copeland and Spivey recognized under Virginia law. Accordingly, this case is not about homosexual marriage, civil unions, or same-sex relationships.

The court specifically said that the nonbiological father had been permitted to intervene in the North Carolina custody case because he had been a "full-time parent" to the child since birth (almost two years at the time), not because of his relationship with the biological father. His custody rights arose from his interest in the child, not from the relationship between the two men "being treated as a marriage under the laws of North Carolina." (which, of course, the court points out, North Carolina would not do because of its own DOMA.)

The case reiterates the number one lesson for same-sex couples with children; it is critical to obtain a court order solidifying a relationship between a nonbiological parent and a child. In the few states that do confer parentage on a nonbiological parent based on a relationship (marriage, civil union, domestic partnership) with the biological parent, the parental relationship is vulnerable in other states if there is no court order.

Although this particular surrogacy arrangement turned adversarial, I've heard from two different sources about gay male couples who, over years, remain connected to the surrogate mother who bore their child. The first source was noted sociologist Judith Stacey, who has studied such family configurations, and I hope will be writing about them soon. The second source was a program for experienced LGBT family law lawyers in New York in September at which some of the gay couples themselves described their ongoing relationships with the child's surrogate mother. When a lesbian couple uses a known sperm donor and that person has a relationship with the child, it can also go very well or very badly (or in between). In both instances, legal recognition of the core family unit is critical; then the child's parents can make decisions based on what they believe to be best for their child, without fear that a court will attach parental rights to someone outside that unit.