Ruling backs genetic parents
By Kathleen Burge, Globe Staff
The Boston Globe, MA, Octber 13, 2001
Creating law where there was none, the state’s highest
court ruled unanimously yesterday that the genetic parents
of twins – not the woman who carried and delivered
them – are the children’s legal parents.
The Supreme Judicial Court is apparently just the second
state high court to rule that a woman who agrees to be a
gestational carrier, but is not genetically related to the
babies, is not the legal mother. Legislatures in a few other
states, including Florida and Illinois, have made similar
Recognizing that families relying on new technology to
have children are facing legal dilemmas not yet addressed
by the law, the SJC prodded state lawmakers to regulate
the murky new world of reproductive technology.
Procreation “isn’t always happening in the
bedroom, and it isn’t always happening without the
assistance of a third person,” said Susan Crockin,
a reproduction technology lawyer who had urged the court
to rule as it did. “This is an enlightened decision
recognizing that people are, in fact, creating families
in novel ways.”
Yesterday’s decision was the court’s latest
foray into the quagmire created by the collision of law
and science. In this case, the court concluded that justice
would be served by relying on genetics.
But in other cases, the justices have ruled DNA alone does
not bind families together. Earlier this year, the SJC heard
the case of a Cambridge man who learned the 7-year-old girl
he had thought was his daughter was fathered by another
The court ruled it was in the child’s best interest
for him to remain her legal father and continue paying child
In 1999, the SJC granted visitation rights to two non-parents
– one an aunt, another a lesbian who had helped raise
her former partner’s biological child.
The most recent decision resolves the legal status of the
twins in the case, now 3 months old, and allows them to
finally get birth certificates.
The babies were created with the eggs and sperm of their
parents, Marla and Steven Culliton, and implanted in another
woman. The couple sought a gestational carrier after Marla
Culliton had six miscarriages.
A gestational carrier is different from a surrogate, whose
eggs are used to create the embryo, making her the baby’s
Yesterday’s celebratory press release from the Cullitons’
lawyer, Melissa Brisman, read like a birth announcement:
“We are pleased to inform you that….Marla and
Steven Culliton have been declared the legal parents of
their twin,” it began.
The gestational carrier, Melissa Carroll, did not dispute
that the Cullitons were the legal parents of the children
she delivered. But before the twins were born, when the
Cullitons asked an Essex judge to order that they, and not
Carroll, be listed on the original birth certificates, he
Probate Judge John C. Cronin ruled that he did not have
the legal authority to make such a ruling. Under the only
applicable law – adoption law – birth mothers
cannot legally give up their children until four days after
birth, he wrote.
The Cullitons were not the first couple to request such
an order, Brisman said. Many probate judges have allowed
them, she said, but some, like Cronin, have not. “Whether
or not you became the parent of your own biological child
was based on which judge you got,” she said.
Cronin’s decision would have required the Cullitons
to adopt their genetic children. The Cullitons appealed,
and the SJC took their case.
“Reproductive advances have eliminated the necessity
of having sexual intercourse in order to procreate,”
Justice John Greaney wrote. “It is apparent…that
[current law] is simply an inadequate and inappropriate
device to resolve parentage determinations of children born
from this type of gestational surrogacy.”
Greaney listed the current laws that don’t apply:
laws governing adoption, children born out of wedlock, and
those produced through artificial insemination. Instead,
the justices decided, Cronin could have ruled under the
broad, common-law powers of courts to make fair decisions.
But the justices made clear that their decision was confined
to the circumstances raised in the Cullitons case. Greaney
noted that no one, including Carroll, contested the Cullitons
request to be listed on the initial birth certificates.
In California, whose highest court has considered a similar
issue, a custody dispute arose between the genetic parents
and the gestational carrier.
In the Cullitons’ case, the justices pointed out
that the twins were created entirely from the eggs and the
sperm of the couple. Carroll loaned the babies her womb,
but unlike a traditional surrogate mother, she did not contribute
eggs to make the twins.
But not everyone was pleased with the decision. Wendy Murphy,
a lawyer who teaches reproductive technologies from a feminist
perspective at the New England School of Law, said she fears
the decision could have harmful effects.
“It does lead us a little bit down the path”
of treating unborn children like commodities, she said,
subject to contracts between people who want to have children
and women who carry them.