PORTLAND, Maine — One woman provided the egg, another woman provided the womb. The Maine Supreme Judicial Court is now being asked to consider which woman should be listed as the mother on the baby’s birth certificate.
The law court’s ruling on the subject could be groundbreaking. The decision has the potential to lay the groundwork for how courts would go about legally determining motherhood in future cases, as it’s now largely uncharted territory for Maine’s courts.
On Thursday, the state’s highest court heard oral arguments in a case in which Robert and Celia Nolan are appealing a Bangor District Court ruling that left the names of gestational carrier Kristen Labree and her husband, Jeff, on the birth certificate of a baby born in 2010.
The Thursday hearing was unusual in that only one lawyer presented his case before the court, as both parties are in agreement on the issue. Attorney Christopher Berry told the justices there’s no dispute over custody or parental rights and the Labrees agree that their names should be replaced on the birth certificate documentation by those of the Nolans.
The Labrees, he told the court, believe their role in the surrogacy agreement has been fulfilled.
The Nolans sought a declaration at the District Court level that they are the mother and father of the child, but while the lower court found that Robert Nolan had established paternity, it ruled that it lacked the authority to declare the maternity of Celia Nolan.
The lower court ruling in the Nolan case represented the latest in what Supreme Judicial Court Justice Ellen Gorman described as a historically uneven response to maternity debates at the District Court level.
“Your firm has taken these sorts of cases to court across the state and have been receiving different rulings from different district courts,” Gorman told Berry, whose firm specializes in adoption and surrogacy law. “Shouldn’t we say the best practices in determining the maternity is DNA testing?”
Berry told the justices Thursday that no DNA test had been performed in the case immediately before them, and Justice Jon Levy questioned whether the high court would be setting a cumbersome precedent by requiring such testing to determine maternity in gestational surrogacy cases. Berry said the parties do have an affidavit from the doctor testifying to the fact that Celia Nolan’s egg was used in the in-vitro fertilization process.
Levy told Berry the Supreme Judicial Court must be careful in its ruling even though the Nolans and Labrees are in agreement over the preferred outcome, as the decision in the Nolan case could be used to settle future cases in which there is a dispute over parental rights.
Chief Justice Leigh Saufley agreed. She said overturning the District Court’s ruling that it lacks the authority to declare maternity would mean, moving forward, district courts in Maine will indeed have that authority. She noted such a ruling in the Nolan case could have the impact of wiping away the rights of gestational carriers in future cases in which the details are less clear or there is disagreement between the surrogate mother and genetic mother.
The Maine Supreme Judicial Court will issue its decision on the case in the coming months.
WOW!!!!
Wow is right! When I first saw the poll question, I thought the egg donor intended for the gestational carrier to raise the baby. So I voted for the gestational carrier to be named on the birth certificate. But the story implies the egg donor is going to raise the baby. In that case, I would name her as the mother. My bottom line decision is this: whoever is going to take the baby home to raise it, should be named on the birth certificate. Where is King Solomon when you need him?!
I provided the egg, but it’s only in a technical sense that I’m considered the “egg donor”, since the baby is biologically mine and my husband’s, and was always intended to add to our family. This is like saying a woman who has her own child using IVF is the egg donor to herself. I am the MOTHER.
Right, and in your case everyone agrees.
But I’m sure that you can see the flip side. The woman carrying the child for nine months and going through labor might have equally good grounds to assert motherhood. That’s what makes this case such a puzzler.
But – she is not biologically related, and never wanted to parent the child. She actively does not want responsibility for this child. The pregnancy only occurred because she wanted to give us OUR child. And there is a very long and detailed contract that lays everything out, that was completed before conception was attempted. Though anyway in our case, we are all in agreement – except the ME courts so far.
Right, what I am saying is that in your case, everyone agrees. But what about the case where there is no agreement and either the surrogate or the donor changes her mind? I don’t know that one rule can fit all circumstances.
But the court isn’t being asked to decide all possible scenarios – they are being asked to rule on ours. The first two levels of judges basically said they didn’t think they had the authority, and now this level says they have so much authority that a ruling on this case would be a precedent even for dissimilar cases. What sense does that make??? Decide each case based on its own merits!
By the way, if an egg is donated to someone intended to raise the child, that is not surrogacy. It’s having a child using an egg donor.
Our child has been raised by us since his birth, since he’s… well… our child.
I think if there is a prior agreement signed by all parties surrogate parents and the genetical parents, that has been completed with attorneys, filed at probate court, there should be no question, the surrogate parents or mother carried the baby for 9 months for the genetical parents who for some unforseen reason could not do so themselves. If all parties agree and this was the plan since prepregnancy why should it be taken court for someone else to decide.
Thank you.
I wonder if the birth certificate was filled out by someone not aware that the woman who gave birth was not the one to be named on the certificate. I can imagine the paperwork was filed and changing the name to the biological mother wasn’t an easy process.
Everyone was aware. There are 10 days to submit the birth certificate application. The hospital held off on submitting the BC because they need a court order to change the names, and knew that would be the case here. We filed the paperwork just hours after the baby’s birth, but the magistrate who received the file was new and didn’t know what to do, so he asked around and thought about it, and the 10 days ran out – so the hospital had to follow the default, which is the birthing woman is the mother, and her husband if any is listed as the father.
Thank you for this explanation of how it happened. As usual, the BDN story leaves a lot to be desired.
I am curious, though. Can a corrected birth certificate be filed? I recently did it for myself, although it was merely a name switch of my first and middle names. But it seems to me this might be easier than having a court decide that a court can or can’t decide. I know, it sounds confusing, but that’s what I take away from the story…that it’s merely a case of who is responsible in determining the parentage, and if district court can decide. Or not.
With all the affidavits from the doctors involved, the statements from the gestational carrier, and the paternity tests that have been done, along with proof of the delay by the clueless magistrate, it might be the way to go. And I do think maybe probate court would be a better determination than district?
Just my thoughts. Along with a good luck hug to all of you in getting this settled.
Thanks. There were no paternity tests done. We relied on the RE’s affadavit that the med protocol is such that ONLY the embryo transferred can be the one that develops into the pregnancy. The judging panel seemed to be unclear on the science behind IVF.
A birth certificate can be changed in ME with a court order, which is routinely done with paternity cases without a DNA test required. We have been denied that court order. Neither my husband nor myself has been granted an order to get either of our names on the birth certificate, even though my husband was ruled as the father in the latest decision we appealed.
This poll is faulty – misleading to say the least. This is not a case of an egg donor, a surrogate, and a different mother raising the child. This is a case where the child is the biological child of the Intended Parents. The egg comes from the parent. A Gestational Carrier is never related to the baby biologically, by definition.
The poll should say: Should the name on the birth certificate be the bio mother who was always intended to parent the child, or the biologically unrelated surrogate who never intended to parent?
I totally agree Celia! Totally faulty as most of us vote before we read the story. I cant believe it has taken this long for an issue that really and truly is a no brainer!! and to just say you are the “egg donor?” that is wrong too. Yes you donated the egg so that you and your husband can raise the baby. You are clearly the biological mother who just couldn’c carry. I sure hope it gets straitened out soon!!!
I applied the Monsanto Rule, no matter whose field a crop grows in the genetic material always belongs to corporate person that owns that gene sequencing.
It does not even matter how it got there.
The donor person has has as much rights as the corporate person in America, right ?
That settles it, doesn’t it ?
I think they should just add to the form to document the any details that are unusual from a typical birth. For medical and genealogy reasons, there should be a record of who’s egg, who’s womb, and who took the baby home.
And coming soon to a court near you, there should some space added to account for all the same sex couple arrangements out there.
That makes good sense.
It will not fly though, it is science based and logical so it will offend the faith based political right wing believers in the reactionary political mythologies.
How is the supplier of the womb a legitimate part of the geneology?
When couples contract with a women to bring their baby into the world, I don’t think she gets listed on the Birth Certificate.
I agree to a point, but what if the gestational mother is the intended mother that uses a donor egg?
Then she’s not a surrogate, she’s a woman who conceives using a donor egg. Surrogacy means that a woman is a surrogate – in place of – the mother’s pregnancy.
I’m glad I did not answer the poll until completely read the article. Wow talk about having to have the wisdom of Solomon. I am curious about a gestational carrier, are they paid to do this or do they do it out of the goodness of their heart?
I think doing it out of the goodness of their heart is the only reason to do it – it’s not worth the time, trouble, and risk otherwise!
As far a receiving compensation goes, it depends. Some women feel like if they are paid, it makes the act less pure. Some have a fee because their husbands and families are put out, and it wouldn’t be fair to them to short-change them for another person. Or there is compensation for the pain and suffering, and risk, of pregnancy. I feel like, how could we possibly fairly give back to someone who makes it possible for us to have a child??? I don’t see it as greedy at all. I would feel bad if we DIDN’T pay compensation, personally. Expenses are always paid, but not necessarily anything more than that – and sometimes the surrogate is left with a loss if insurance denies claims or the IP’s disappear before settling everything :( . And BTW when there is comp, it is nowhere near the figures tossed out in Baby Mama and lurid news reports. It’s typically $15-35K, depending on experience, circumstances, etc. Yes it’s a lot… but think of how that compares with the cost of a car. I don’t care if I ever have a car again, but my life has been saved by women who have made me a mother.
Also, some states (NY, MI) and countries (Canada) and insurance policies prohibit compensated surrogacy arrangements. Expenses-only arrangements are allowed.
King Soloan said it best -they should cut the lawyer in half
Seems rather basic — which mother takes the baby home?
Granted, the determining the maternity via DNA testing works — but that means a sperm donor must be listed as the father too. It’s a matter of legal consistency. If the sperm donor is not the father of a child born via a fertility clinic, that the egg donor is not automatically the mother.
The court could require egg & womb mothers to be identified on a birth certificate — and both a husband and sperm donor on there as well … again, legal consistency.
at the hospital, at time of delivery, the surrogate mother or genetic mother are not the issue — the ultimate custodial PARENTS (both parents) are. They should be listed as the parents — though a notation of fertility egg or sperm donation should appear somewhere for future legal reference… so nobody freaks when a blood test, or organ donation test, indicates a lack of genetic relationship.
Still the matter is clear — or should be — the parents who raise the child from day one are (should legally be) the parents of record … and any idiot at a hospital who complains should, as punishment for their stupidity, be held financially liable for the cost of having and raising the child.
A strange case with many social implications. Looking forward to hearing the decision.
Why is it strange? I can’t get pregnant, but I can conceive an embryo with my husband via IVF. We had a legal contract stating that we would conceive this way, and the embryo – our child – would be carried by someone else. A wonderful person who did not want another child for her family, but did want to help people who dearly wanted a child. I was Mom all through the pregnancy, went to as many appointments as possible – all the big ones, was present at the birth (cut the cord!), induced lactation and am still nursing the baby at 16 months of age, and my husband and I are raising him. The only odd thing is that we are not on the birth certificate. And it’s VERY odd that the surrogate’s husband is named as the father!! It’s clear and desired by all of us that our son have his bio and actual parents who raise him, and for and by whom he was conceived, on his birth certificate.
You sound like an amazing woman. Congratulations on your beautiful baby.
It does seem odd. If the courts can use a DNA test to establish paternity, why is there any difficulty in using a DNA test to establish maternity? Am I missing something here?
*****
Now that I read more posts–I think I get it.
There is no requirement to provide a DNA test to get paternity changed on the birth certificate. One of our arguments is that under equal protection of the law, that paternity statute could and should be construed to apply to both sexes.
And thank you, we do think that DS is a cutie patootie :) .
Wow! I’m absolutely shocked by your reaction. I simply meant that this is a very unusual case! One that is not heard of everyday, am I wrong? It’s genuinely surprising to me that a surrogate and her husband would be listed as the parents of this child. Thus, it’s a strange case because, socially, it makes little sense to me. How could there be an denying that you are the mother of this child? Both biologically and symbolically. Plus, in most disputes related to young children there are two very polarized arguments. In this case, both families are in total agreement– again, not an everyday case. Very sorry you took offense to the word ‘strange’. It can mean a variety of things…
I’m sorry, I did take your comment to mean that our family-building situation was strange, as in bizarre. I know it’s not the norm of course, and believe me it’s a painful road to get to that point, but we are incredibly lucky to live in a time where the medical technology makes it possible for us to have our biological child, even though I wasn’t able to experience a pregnancy.
And yes, we laugh (painfully) a lot that officially the case is Us vs. Them, but really it’s All of us vs. Maine red tape!
Very agreed, and best wishes! Like I said, looking forward to reading this decision.
Ms. Nolan,
I applaud you and your husband for your care and diligence (and the Lebrees for their kindness). Not only have you both planned for the birth and raising up of your child, but you have gone the extra mile in nursing your child to give that child the healthiest start in life. (I nursed my son for two years, in a society-as you may have noticed-that does not necessarily affirm such a practice, and he is blessed to be a healthy young adult today.)
Prior to IVF, many societies have valued the desire of a couple to bring a child into the world (for nurture and love, of course, but often for inheritance and lineage purposes as well), and have provided for that desire since Biblical times in the best way that they knew how, (for example, Levirate marriage). With the advent of IVF, I am amazed that there is any quandry about parentage. Even in the Levirate marriage, the deceased father was understood to be the parent. While this would have been necessary back then for inheritance/lineage purposes, I believe it to have been, ultimately,a matter of grace and love, honoring the desire of the parents to bring a precious new life into this beautiful world.
May you, your husband, and child be blessed with health and happiness, and may this birth certificate matter be settled (soon) by grace and love.
Everyone should have a birth certificate that lists their biological parents. Then if there is adoption or other custody arrangements their can be a certification of adoption.
As an adult adoptee who has been reunited with my birth parents, I wish that my birth certificate could reflect my true race. Both of my parents weren’t Caucasian as listed on my certificate and I don’t identify myself as white. I am a person of mixed race and my birth certificate should reflect that.
Everyone has a right to have their genetic parents listed on their original birth certificate, as well as their race.
I thought we weren’t supposed to keep track one one’s race anymore.
Is that why Zimmerman is a White Mexican while Obama and Tiger Woods are Black? All enjoyed one, white, parent.
My wife’s 1/16th Blackfoot. Can she claim Native American ancestry?
The words, “egg donor,” are offensive when referring to the biological mother of this child. The words, ” surrogate mom,” don’t even begin to define what an amazing, generous and kind woman Kristen Lebree must be. Mrs. Lebree provided a safe gestational environment for the child genetically of the Nolan’s, and I would assume that is because Mrs. Nolan had health issues that prevented her from doing so. Best wishes to all of those involved!
The hospital made a clerical error. The biological mother should have been listed as the mother (the other woman was a surrogate, with a legally binding contract). This has gone far and away further than it should have. The Nolan’s are the bio parents, they are the ppl raising this child. Clerical error in filling out a birth certificate, unreal.
Am I missing something? Nothing seems like it ought to be a problem at all.
This seems so simple: a husband and wife can’t themselves bring a baby to term, so they give their fertilized egg to a woman who (with her husband) agrees to bear the baby and hand it back to the genetic parents to bring up. Everyone agrees ahead of time and never changes their mind. Is this really just a stupid clerical glitch that’s bedeviling the judicial system and a handful of lives? What in the world is the surrogate’s husband doing on the birth certificate AT ALL? I’m just confused.
Your tax dollars at work!
And lots of ours too, that we were planning on setting aside for future education!
The Intended Mother and Father should be listed on the birth certificate as the parents. Let’s hope the court get’s it right.
Seems simple, modify the document and list both.
Seems simple, but apparently Maine has more red tape than even I thought. Explanation is in these comments, by Celia Nolan.
Wow, Some women can’t carry so others carry their eggs then they want their egg back all hatched. Then other’s donate. If this arrangement was intended to come home because she couldn’t carry to term, then oviously the baby is hers. If she was a donar, and had intended to donate the egg, then the baby no longer belongs to her.
Why is this even in the court system?? The parents are the egg and sperm donors!!!! The carrier is just that…………….there are many of these cases and the courts don’t need to be involved at all. Genetics/DNA are the egg/sperm………..not the “oven.”
No-brainer. The family line follows the DNA, and the “egg” was fostered. No new laws needed.
“An egg lacking a rooster is good for the frying pan” – Shalomnic Yahoo.
How in the heck does something this simple get made into something unnecessarily complex? If the egg & sperm are from one couple, then they are the parents.
Wow. That is a puzzler. Would a DNA test even work? Any embryo takes on so much material from the mother, wouldn’t it have DNA from both women?
I think the agreement of the parties should prevail in a case like this where there is agreement. I think the Court was probably wise to be cautious of trying to set a blanket rule.
Yes, the embryo carries DNA from the mother (egg) and father (sperm), which is myself and my husband. The uterine environment does not affect genetics in any way.
Like the Chicken vs. the Egg controversy… I vote for the EGG (donor).
I think whoever gets the morning sickness and goes through the agonizing endless hours of childbirth is the mother, but I’m a guy, so whatever the ladies decide is alright by me !
Donating an egg doesn’t make you a mother any more than donating a sperm makes you a father.
Now, if you want to argue that it’s important for medical reasons to know who donated what so that people can properly manage their health, that’s a good point, too. People NEED to know where their genetic material came from.
Let’s not make a simple thing complicated or a complicated thing simple. It is what it is.
So the intention of all parties counts for nothing, pregnancy alone defines motherhood?
I take it you have not experienced infertility or been close to anyone affected by it (who shared the information with you). That is lucky indeed, and I hope you never have to know first-hand what it’s like.