SJC quandary: what determines motherhood
By Kathleen Burge, Globe Correspondent, The Boston
Globe, MA, August 29, 2001
Case pits genetics vs. legal precedent
The twins were created entirely from the parents who are
now raising them: his sperm, her eggs. But then the tiny
embryos were implanted in another woman, one who loaned
them her womb and eventually gave birth to them.
Now barely a month old, a simple question about their identity
is before the state’s high court: Who is the mother?
The woman who desired to have the babies, whose eggs created
them? Or the woman who grew them inside her and then gave
In an age when science is creating many new ways for people
to become parents – donated eggs, donated sperm, gestational
carriers, artificial insemination – the Supreme Judicial
Court next week will for the first time look at whether
a genetic mother can replace a birth mother on a baby’s
birth certificate. It’s a designation that brings
legal rights to a child.
There is no dispute about who should have custody of the
twins. Everyone involved in the case – the genetic
parents, Maria and Steven Culliton, the birth mother, and
the two hospitals that cared for her – all agree that
the Cullitons should be listed on the birth certificate.
But a probate judge, parting from the recent decisions
of many of his colleagues, refused to issue that order,
ruling on July 12 that the state law didn’t allow
it. The only applicable law, says that birth mothers cannot
legally give up their children until four days after the
birth, he wrote.
“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,”
Essex Probate and Family Court Judge John C. Cronin wrote.
“Troubling to this court is that they seek these determinations
prior to the birth of the child.”
He was also troubled that the Cullitons paid the gestational
carrier $14,000 for living expenses – including medical
costs, lost wages, and maternity clothes – related
to carrying the twins and giving birth.
“We were shocked,” said lawyer Melissa Brisman,
who represents the Cullitons, saying that such surrogate
arrangements are now routine.
In their legal briefs, the Cullitons argue that not only
does Cronin’s ruling deny them the right to be the
parents of their children, but it forces the gestational
carrier, Melissa Carroll, to take on an unwanted role as
the children’s mother.
The Cullitons, who live north of Boston, and Carroll signed
an agreement that she would have no legal rights to the
Around the nation, courts have fashioned answers from the
murky mix of genes and intentions and the best interests
of children. Massachusetts, the SJ ruling may determine
whether the Cullitons will have to adopt their genetic children
from the woman who gave birth to them. The decision may
also affect gay couples who have sometimes successfully
petitioned courts to allow two same-sex parents to be listed,
from birth, on the birth certificates.
“Where so many people are facing fertility problems
and having to look to reproductive technology to have children,
the law really hasn’t caught up with reality,”
said Joyce Kauffman, a Cambridge lawyer who has worked on
assisted reproduction cases like the Cullitons’.
The twins arrived nearly two months early on July 23. Known
in court records as Baby A and Baby B, they still have no
birth certificates. They cannot get Social Security cards,
which means their parents cannot claim them as tax deductions.
The Cullitons turned to a gestational carrier – a
woman who carries the baby in her womb but has no genetic
link to it, because Marla Culliton was medically unable
to carry a child to term, according to court records. But
they didn’t foresee the legal complications, Brisman
said. The Cullitons declined to comment.
Officials at the state Department of Public Health have
said they will submit written arguments to the court, but
yesterday wouldn’t say what they would argue.
Although there are no statistics, judges in similar cases
have often issued orders before the births allowing the
genetic parents to be listed on the birth certificates.
Brisman said she’s seen a dozen such orders in Massachusetts;
other family lawyers agree the orders are not uncommon.
These orders, obtained before birth, save the intended
parents the expense and emotional difficulties of later
adopting the children.
Cronin also noted in his decision that other states’
higher courts have ruled differently on the issue. While
a 1993 California court upheld a similar pre-birth order,
a court in New Jersey rejected one last year.
Specialists agree that the law is unclear on these tangled
issues of motherhood. “At stake is how courts should
react in the absence of definitive legislation and whether
courts want to facilitate these kinds of arrangements,”
said Elizabeth Bartholet, a professor at Harvard Law School.
Since no one has opposed the Cullitons’ legal case,
the SJC next Thursday will only hear one side argued –
a circumstance that concerns Bartholet. “You get courts
making a decision in a context where they’re not getting
a wide range of viewpoints,” she said.
But dissenters may be hard to find. Although Cronin cited
a New Jersey case where a judge had rejected a similar order,
legal specialists say that’s rare. Melanie Blum, a
reproductive law lawyer in California, said she’s
never seen a case where a judge wouldn’t grant an
order when all parties agreed.
“As a lawyer, you look at this and say, ‘Why
would a judge not want to do this?’” she said.