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Legal Update: Gestational Carrier Arrangements

Legal Update-female judge.jpg

by Melissa Brisman, Esq. and Lauren Murray, Esq., July 12, 2010

This month’s legal update highlights problems arising from international gestational carrier arrangements. A gestational carrier is a woman who carries a pregnancy for a third party and is not biologically related to the child that she is carrying.

The first story is about a gay French father and his twins born to an Indian gestational carrier. The second story discusses new legislation on the horizon to reform the gestational carrier industry in India. The remaining items in this month’s legal update discuss a new adoption law in New Jersey, a decision from the Ohio Court of Appeals, and a shift in policy in connection with the Family Medical Leave Act.

French Man’s Twins Born to Surrogate in India

A 40-year-old, gay French man recently became a father for the first time when his Indian gestational carrier gave birth to twins. In the interest of preserving his privacy, the man has identified himself to the press as Mr. Augustine. Mr. Augustine and his partner of 14 years desired to have a family and decided using a gestational carrier was the best route. However, France does not approve of gestational carrier arrangements, or surrogacy in general, and the laws in France are particularly strict for a homosexual who wants to become a parent through a gestational carrier arrangement. Mr. Augustine chose to pursue his gestational carrier arrangement in India.

Mr. Augustine traveled to India for the birth in February of 2010. The twins were born in April of 2010. Upon the twin’s birth, Mr. Augustine took the birth certificates provided by the birth hospital to the French consulate. It is not clear whether these birth certificates named Mr. Augustine as the only parent or whether they named the gestational carrier as mother as well. He asked that his children’s names be transferred to the French birth registry so that passports could be issued for them. The consulate was perplexed and is currently deciding whether existing French law allows the names to be transferred. In the meantime, Mr. Augustine and the twins remain in India.

Legislation May Reform Surrogacy in India

There have been many indications that India will soon adopt new legislation to govern the rapidly growing surrogacy industry. It appears as though a draft assisted reproductive technology (ART) bill will be introduced in the Indian Parliament this year. If passed, this bill would result in significant change. Currently, gestational carrier arrangements are managed entirely by infertility clinics, with the clinics providing all screening, matching of intended parents and carriers, and provision of all infertility treatment and housing of the carriers. Under the new bill, clinics would no longer be able to both broker gestational carrier arrangements and perform medical procedures on the carriers. Instead, the bill calls for the establishment of an “ART” bank that would be responsible for locating both carriers and egg donors.

The bill would place additional limitations on practices in the industry. For example, the bill limits the number of embryos that can be transferred to a gestational carrier during any single embryo transfer. It also limits any individual woman to five carrier pregnancies, and only women 35 and younger would be eligible.

Indian gestational carrier arrangements are increasingly the preferred option for international individuals and couples on a budget. As currently drafted, this bill could pose a significant obstacle to such intended parents because it requires them to obtain a guarantee from their home country, prior to delivery of any child, that that country would provide citizenship to the child born to the Indian carrier. Citizenship is traditionally conferred after birth, and it sometimes requires proof, through DNA testing, of the genetic link between the intended parents and the child. It is likely to be extremely difficult for most intended parents to meet this requirement. Furthermore, the bill could prohibit gay/lesbian intended parents from entering into arrangements with Indian carriers entirely.

It remains to be seen whether this bill will become law, and if it does, whether it will contain some or all of the above proposed measures.

New Jersey Law Would Provide Adoptees Access to Information

The New Jersey legislature is close to passing a bill that would allow adult adoptees access to their original birth records and medical history, including the names of their birth parents. The New Jersey Senate approved the bill by a vote of 27 to 10 in March. On Monday, June 14, 2010, the Assembly Human Services Committee approved the bill by a 6-0 vote, with four abstentions. The bill will now be posted for a floor vote in the Assembly. Advocates in New Jersey have been fighting for adoptees to have access to their birth information for more than 30 years. The current bill has advanced further than any bill prior and advocates have high hopes.

Under this bill, adult adoptees would have access to their original certificates and family medical history. However, birth parents in New Jersey are given one year from enactment of the law to notify the state that they do not wish their information to be made available to the adoptees. Future birth parents who decide to put their children up for adoption would have the choice whether to make their information available. If they state that they would prefer not to be contacted, then they will still be required to submit medical and cultural information for adoptees’ use.

If this bill becomes law, New Jersey would become the ninth state to guarantee adult adoptees access to birth information. Similar laws have recently been enacted in Alabama, Delaware, Maine, New Hampshire, Oregon and Tennessee. Kansas and Alaska have always provided such access. It remains to be seen whether New Jersey’s Governor, Chris Christie, will support the bill.

Ohio Court Ruling Favors Intended Mothers

The Ohio Court of Appeals recently decided an interesting case, entitled S.N. v. M.B., involving the legal parentage and custody of twin children born to a gestational carrier. These children were conceived from donated embryos, so that neither the gestational carrier nor the intended mother (who was the sole intended parent) was the genetic parent of the children. The twins were born very prematurely. As a result, one twin passed away soon after birth and the other continues to have medical complications requiring constant care.

In order to establish the intended mother’s legal parentage over the surviving child, the intended mother and gestational carrier commenced an adoption proceeding shortly after birth. The adoption proceeding was not completed due to a misunderstanding between the adoption agency and the intended mother. Thereafter, the relationship between the gestational carrier and the intended mother became irreparably strained and the intended mother initiated a parentage action seeking to disestablish the gestational carrier’s maternity. In Ohio, a birth mother is generally presumed to be the legal mother of any children born to her. The gestational carrier challenged the intended mother’s claim to parentage and custody of the surviving child.

Both the Ohio trial court and the Ohio Court of Appeals decided in favor of the intended mother. The Court concluded that Ohio law allows a woman to demonstrate that a birth mother is not necessarily the legal mother of a child born to her. This can be accomplished by providing specific evidence to the court showing that the parties intended someone other than the birth mother to be the legal mother. The intended mother in this case presented her gestational carrier agreement to the court. In this agreement, which was negotiated between the intended mother and the gestational carrier with both represented by independent counsel, they expressed their understanding that the intended mother would be the legal mother of any child born to the carrier.

As a result of the Court’s ruling, the intended mother is now recognized as the legal mother of the child, despite the lack of biological connection, and has custody of the child.

Family Medical Leave Act Applies to Gay and Lesbian Individuals

Finally, the United States Labor Department issued a new interpretation of the Family Medical Leave Act (“FMLA”). The new interpretation makes it clear that the FMLA applies to gay and lesbian workers who wish to take time off to care for children of their same-sex partners. Like their heterosexual counterparts, these workers must be employed by companies with more than 50 employees in order to be subject to FMLA requirements. If the FMLA applies to their employer, they are entitled to up to 12 weeks of unpaid leave to care for their family member without fear that they will lose their job when they desire to return to work.
Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

Lauren Murray is an attorney licensed to practice in New York and New Jersey. She is an associate at the firm, Melissa B. Brisman, Esq., LLC, and focuses her practice solely on transactional and litigation work associated with reproductive law. Ms. Murray can be reached at