Just four days after the Connecticut Supreme Court’s October 10 announcement that the state’s constitution required allowing same-sex couples to marry, a Superior Court judge ruled that a Texas gay male couple who married in British Columbia and Massachusetts should be recognized as married in Connecticut.
The case involved the men’s effort to place their names on the birth certificates of children they conceived through gestational surrogacy in Connecticut.
After conflicting rulings this summer on the question in similar cases by several Connecticut trial judges, Judge Holly Abery-Wetstone determined that the men should be treated the same as any married heterosexual couple who made a gestational surrogacy agreement with a Connecticut woman.
In September 2007, Bennett Cunningham and Michael Spann, the Texas couple, and Jamie and James Tardiff, a Connecticut heterosexual married couple, entered into a gestational agreement. The two gay men each donated sperm to create a fertilized embryo with an egg from an anonymous donor.
On May 14, the two embryos were implanted in Jamie Tardiff, who became pregnant and carried them to term. Two babies were delivered on October 10, coincidentally the date when the marriage ruling was announced, but several weeks before it officially went into effect on October 28.
Each of the men is a biological father of one of the babies, but the couple plans no genetic testing to figure out which, since they plan to raise both children together as “equal” parents.
Under Connecticut law, when a child is born the birth mother’s name is automatically placed on the birth certificate, but in gestational surrogacy cases a “replacement” certificate is soon issued listing the legal parents, and this becomes the permanent birth record. Anticipating the birth of their children, the men filed an action with the Superior Court on September 22, seeking an order to the Connecticut Department of Health that they both be listed as parents on the “replacement” birth certificates.
The Connecticut Health Department raised various objections, pointing out that in the absence of genetic testing there is no absolute proof that either man is the biological father of either of the children, and arguing that only a biological or adoptive parent should be listed on a birth certificate. The Department also has a standing objection to recognizing a legal parental relationship in advance of a child’s birth in the absence of a genetic tie.
After a child is born, the Health Department argues that unrelated adults should have to go through an adoption process in order to become the legal parent of a child, so that their fitness to be a parent can be determined.
After summarizing the recent conflicting decisions, Judge Abery-Wetstone found Griffiths v. Taylor more persuasive; there, a judge ordered that a gay male couple be treated as legal parents for the replacement birth certificate.
But her ruling was bolstered by the recently-announced Kerrigan marriage equality decision.
Connecticut law provides that the sperm donor in a gestational surrogacy case will be named the legal father on a replacement birth certificate without having the surrogate’s husband first having to terminate his parental status. Abery-Wetstone accepted the plaintiffs’ declaration that their sperm created the embryos and, following the Griffiths ruling, found that no genetic testing was needed to match the biological father and the child, since the two men intended to raise the children together as spouses.
Abery-Wetstone wrote that the state’s laws concerning artificial insemination “in conjunction with the plaintiffs’ legally recognized marriage… lend additional support to placing the names of the plaintiffs on each of the replacement certificates.”
In this very unusual situation, the Connecticut Supreme Court’s decision actually served as a precedent before its “official” date of October 28, and before it will actually go into effect on November 12.
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