Mass. case tests legal standing of surrogate,
By Pamela Ferdinand, The Washington Post,
MD, September 6, 2001
Procedure for placing name on birth certificate is at
Boston – These are the undisputed facts: Marla
and Steven Culliton are the genetic parents of twins, a
boy and a girl, barely seven weeks old. An unrelated woman
was paid to carry the embryos and deliver the babies.
All three parties agree that the Cullitons, whose sperm
and eggs created the twins, should have custody. Everyone
also agrees that the couple should be listed as mother and
father on the birth certificate.
But it’s not that simple.
In a case that challenges the traditional definition of
motherhood in Massachusetts, the state’s highest court
is scheduled to hear arguments today on whether a genetic
mother can and should replace a birth mother on a baby’s
birth certificate. The Supreme Judicial Court ruling will
determine whether Marla Culliton may be listed as the mother
on the original birth certificate or if she must go to court
to legally adopt her children from the woman who bore them.
A 1998 Supreme Judicial Court case on surrogacy acknowledged
the rights of genetic parents to have their names placed
on birth certificates. But the court did not say whether
parents must go through adoption proceedings to win that
A lower court judge has ruled against the Cullitons, setting
the stage for further clarification by the state’s
At a time when reproductive medicine is outpacing public
policy nationwide, legal experts say the ruling –
whatever its conclusion – will contribute to an unfolding
discussion of what “maternity” and “paternity”
mean in the 21st century.
“When there are two possible mothers, our argument
is that the intention of the parties should break that tie,”
says Melissa B. Brisman, an attorney for the Cullitons,
who have declined to comment.
An estimated 5,000 surrogate births have taken place nationwide
in the past 20 years, according to Steven Litz, director
of Surrogate Mothers Inc. in Indiana. The majority have
involved artificial insemination, a process that involves
a surrogate who is genetically related to the child.
But as technology improves and success rates climb, an
increasing number involve gestational surrogacy –
or embryo transfer – in which the woman who gives
birth has no biological link to the baby, he said.
“The future of gestational surrogacy in Massachusetts
is at stake f the Cullitons were to lose,” said John
J. Weltman, an attorney who runs a surrogate parenting agency
Twenty-six states have laws governing surrogacy, and individual
courts have approached surrogacy-related issues on a piece-meal
basis. At least four states – Michigan, New York,
Utah and Washington – have criminalized paid surrogacy,
while others have established strict regulations and detailed
procedures for it.
Some states require genetic parents to go to court before
a child’s birth to obtain a “pre-birth”
order to place their names on the original birth certificate,
without the name of the surrogate. Others require post-birth
DNA testing before genetic parents can be listed.
The District of Columbia prohibits surrogacy programs all
together, while California allows couples to establish parenthood
any time after the start of pregnancy via a court petition,
according to the American Surrogacy Center, a national advocacy
group based in Georgia.
“Some states are finally accepting the fact that
this is something that’s here to stay,” says
Litz, whose agency handled hundreds of court petitions.
“There’s no reason why a couple should not be
able to get their names on a birth certificate if they are
the child’s biological parents.”
The one-sided nature of the discussion here and elsewhere
has obscured a broader debate, said Elizabeth Bartholet,
a Harvard Law School professor and author of “Family
Bonds: Adoption, Infertility and the New World of Child
As long as judges, and not policymakers, address issues
of reproductive law, she said, the fundamental question
of whether commercialization should have a place in procreation
will remain unsolved.
“The problem with courts being put in this position
is that they are not getting anything like a full picture,”
Bartholet said. “Courts are being asked to recognize
commercial surrogacy in a context that’s sympathetic
to legitimization. Underlying this is whether we really
should be allowing this at all”
In Massachusetts, the law does not specifically address
cases in which women become mothers by having their embryos
implanted in a surrogate. However, pre-birth orders allowing
genetic parents to appear on original birth certificates
have become commonplace, attorneys said.
The Cullitons, both of whom are in their thirties, had
not anticipated any legal complications last year when they
found a woman to carry their child. Marla Culliton is medically
unable to bear children, and the surrogate, referred to
in court as “Melissa,” is unmarried, over 21
and has previously given birth, according to court records.
“Melissa” underwent in vitro fertilization
and agreed in writing that she had no intention of assuming
custody or any parental rights. In exchange, she was reimbursed
$12,000 in living expenses, plus $2,000 in supplemental
living expenses per child.
The babies were due in September. In May, the Cullitons
sought a pre-birth order compelling the hospital to list
them on the birth certificates instead of the birth mother.
However, a probate judge refused to grant the order, and
he dismissed the case on July 12.
Adoption law, which says that birth mothers cannot legally
give up their parental rights before birth, is the only
applicable law, concluded Essex County Probate and Family
Court Judge John C. Cronin.
“The genetic parents in this case are essentially
asking this court to ignore the presumption that the birth
mother is the ‘mother’ and to find that the
birth mother has no rights whatsoever to the child,”
he wrote. “Troubling to this court is that they seek
these determinations prior to the birth of the child.”
The Cullitons appealed the decision just days before the
twins were born prematurely on July 23 at Beth Israel Deaconess
Medical Center in Boston. The case was subsequently transferred
to the state’s highest court, and the hospital was
ordered by court not to fill out the birth certificates
for the children until the matter is resolved.
The couple argues that they are being denied the right
to be parents of their children from the moment of their
birth and that they will incur financial expense and suffer
emotional pain if they are forced to go through the adoption
process. They also contend that “Melissa” never
possessed parental rights and is being forced to take the
role of mother that she did not want.
In addition, they argue that the court should consider
the fact that there is no dispute between the genetic parents
and the surrogate. No one is scheduled to argue in court
against the Cullitons in court today.
In their court filing, the Cullitons contend that “the
time has come for this Court to embrace the impact of technology
on matters of family and to examine these issues, keeping
an eye out for the reproductive rights of the biological
parents and for what is perhaps the most important benchmark
in the law – the best interests of the child.”
The Boston Fertility Society, Boston IVF, - a fertility
center affiliated with Beth Israel – and Gay &
Lesbian Advocates & Defenders have filed court documents
supporting the Cullitons’ case, Brisman said. It is
believed that the SJC ruling could affect same-sex couples
seeking to have their names listed on original birth certificates.