Surrogacy Law: Conn. Gives Non-Genetic Parents Legal Rights

Photo: For more than two years, Tony and Shawn Raftopol, Americans who live in Holland, worried that only one of them was the legal parent of their young twin boys.
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During a two-year legal battle, Anthony and Shawn Raftopol, Americans who live in Holland, worried that only one of the men was the legal parent of their young twin boys.

The gay couple married legally in Massachusetts in 2008. Their twins, Sebastiaan and Lukas, now 2, were born in Connecticut through in-vitro fertilization with a donor egg and a surrogate mother.

Anthony Raftopol was the biological father and, under family law, had full parental rights. But when the couple tried to obtain a birth certificate, also naming Shawn, they were told he had no legal claim to the children.

"I work in another country and am on the road a lot," contractor Anthony Raftopol, 41, said. "Shawn travels with the children and it looked like he was literally trafficking children across the border.

"He travels with whole file documents just to show them he is not stealing the children from me."

Among the concerns was that Shawn Raftopol could not make medical decisions in the event of an emergency and the children needed to be hospitalized. "It was a little scary for us," he said.

But the Connecticut Supreme Court ruled this week that Shawn Raftopol, 40, has parenting rights, even thought he is not the biological father, because the couple had a valid surrogacy agreement.

The court rejected the state's argument that the co-parent would have to go through a second-parent adoption proceeding in order to be listed on the birth certificates.

The decision will have far-reaching ramifications for other couples -- gay and straight -- who choose to have their children through surrogacy.

After the birth, Connecticut's Department of Public Health refused to allow the names of both fathers to appear on the birth certificate. The Supreme Court's ruling affirmed a lower court's order confirming their parentage and requiring the state to issue corrected birth certificates, addressing a new and emerging area of law.

Two partners who sign a surrogacy agreement in Connecticut can now have both their names on the birth certificate, even without a genetic link. Intended parents can get immediate recognition without any other action, even before the birth of the child.

The ruling is "really significant," Anthony Raftopol said by phone Wednesday. "The state is, for the first time, recognizing the nature of the relationships that are being created thought surrogacy arrangements in general and IVF [in-vitro fertilization] in particular.

"That affects not just who can be a parent but the validity and enforceability of surrogacy.

"Connecticut has set the stage for other states and legislatures -- the sky hasn't fallen," he said. "Times are changing and we need to bring the family code out of the 19th century."

Rising Number of Surrogate Births in the U.S.

The American Society for Reproductive Medicine estimates that there were 400 to 600 surrogate births annually from 2003 to 2007, the last year for which data is available.

But many advocates say the actual figure may be much higher, especially with a so-called "gaybe" boom among gay and lesbian couples who want to have children.

Surrogacy has been made possible through advances in assisted-reproductive technology.

The first in-vitro fertilization baby was in 1978. Since 2007, as a result of the procedure, 19,585 infants have been born; close to 2 percent of all births in the United States, according to the American Society for Reproductive Medicine.

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