Court struggling with birth-certificate case
The Daily Texan, TX, Thursday, August 30, 2001
State law says only birth mother should be listed on
BOSTON - A month after they were born, a baby boy
and his twin sister still have no birth certificates. The
paperwork is being held up in a dispute that could change
the legal definition of "mother" in Massachusetts.
In Massachusetts and many other states, only the woman
who gives birth is presumed to be the mother and can have
her name on the original birth certificate. The law does
not address instances in which women become mothers by having
their embryos implanted in a surrogate. Marla and Steven
Culliton hope to change that.
They hired a surrogate after Marla had six miscarriages.
The surrogate was implanted with an embryo created from
the couple's sperm and egg, and on July 23 she gave birth
to the Cullitons' twins.
The surrogate, known in court as "Melissa," has
no biological link to the children, and she agrees she has
no parental rights.
Still, a family court judge refused to allow the Cullitons'
names on the original birth certificates.
"It is one of a new wave of cases which are forcing
courts throughout the country to wrestle with the meaning
of such basic, fundamental terms as 'mother,' 'paternity'
and 'maternity' as a result of technological advances in
reproductive medicine," said Melissa Brisman, the Cullitons'
"What we're asking this court is, 'What does it mean
to be a mother?' and 'Does the mere act of giving birth
give rise to motherhood?"'
The state's highest court will hear arguments Sept. 6.
In the meantime, the court blocked the hospital from issuing
birth certificates for the twins. Generally in Massachusetts,
the name of the woman who gave birth even if she is a surrogate
is put on the birth certificate. Then the genetic parents
have to go to court to adopt the child and legally sever
the surrogate's parental rights.
The original birth certificate is then sealed by the court
and can be opened only in extraordinary circumstances by
a judge's order and a new one with the names of the genetic
parents is issued.
The Cullitons, who would not discuss the case and will
not release the names of their children, do not want the
surrogate's name ever to appear on the birth certificates,
arguing that genetic parents should have the right to decide
how and when to tell children about their being born to
"If ever someday these kids get a look at their original
birth certificates, we want them to be accurate. It doesn't
tell the story of who their parents are," Brisman said.
Surrogacy laws vary widely from state to state. Some states
require genetic parents to go to court before birth to obtain
a "pre-birth order" to have their names on the
original birth certificate, without the name of the surrogate.
Others require DNA testing after birth to document the child's
parentage before genetic parents can be listed on the birth
California is among the states with the most advanced
laws. Couples can establish parenthood any time after the
start of pregnancy with a court petition. A judgment is
usually issued within 24 hours.
The process grew out of a California Supreme Court ruling
in the 1990s that said the state should look at "the
intent of the parties" at the time they begin the surrogate
process to determine the legal parents.
In the Culliton case, a family judge questioned whether
he had the power to determine parentage before birth or
the authority to order a hospital to list only the genetic
parents. Some other judges in Massachusetts have granted
pre-birth orders in similar cases, but Judge John Cronin
wanted a higher court to clarify the law.
Andrew Vorzimer, a Beverly Hills, Calif., lawyer who specializes
in reproductive law, said lawmakers in many states are reluctant
to pass legislation that changes traditional notions of
"There is still a large portion of our population that
is opposed to surrogacy, and for that reason, it's been
a subject that's taboo," he said.
Joan Barnes of Kennesaw, Ga., said she and her husband
had to sue to establish parental rights after their son
was born in 1992, even though they thought they had covered
their legal bases ahead of time.
They had presented affidavits to the hospital from a clinic
showing that their embryo had been transferred to a surrogate,
and Barnes said she was assured that only their names would
appear on the birth certificate.
"The minute the child was born, the hospital reneged
on that commitment, saying they could only put the woman
who birthed the baby's name on the birth certificate,"
said Barnes, who is now president of the American Surrogacy
Center, a national advocacy group.
A year later, when they had their second son through a
surrogate, they successfully petitioned for a pre-birth
order, and their names were put on the original birth certificate.
Copyright 2001 Associated Press. All rights reserved.
This material may not be published, broadcast, rewritten,