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.PlayPatty Swanson
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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.

The first challenge to surrogacy was in the Baby M case in New Jersey in 1988, when the biological mother challenged the intended parents for custody.

In a gestational surrogacy agreement, a woman agrees to have an embryo (a fertilized egg harvested from another woman) implanted in her, which she will surrender to the intended parents under the contract.

Most states have been silent on the issue of surrogacy. It is still not recognized in 22 states. In New York, for example, the non-biological parent must file for a second-parent adoption.

In Connecticut, the ruling applies only in cases where the carrier has no genetic link to the child.

"There was no dispute from the gestational carrier," according to the couple's lawyer, Victoria T. Ferrara. "This was not a traditional surrogate. She was a gestational carrier with no connection to the babies."

The Department of Health took the position that it did not have the authority to recognize a non-genetic parent as the legal parent, Ferrara said.

"But what the Supreme Court ruled is that is exactly what Connecticut law authorizes," she said. "When a couple enters into a valid gestational agreement with a surrogate, they are not the intended parents, they are the legal parents."

Until now, only three kinds of parents have been recognized: a couple who gives birth to their own genetically related baby; those who adopt; and couples who have artificial insemination.

Now, Ferrara said, there is a fourth way; non-genetic couples who are the intended parents of a valid surrogate agreement.

"The whole purpose of the statute is to honor the intention of the people bringing these children into the world," she said. "They are their parents."

Now they can go to the courts "well before" the birth to establish legal parentage.

"To my knowledge, this is the first time a state supreme court has looked at this through this lens," she said.

Anthony and Shawn Raftopol Used Same Surrogate for Daughter

The Raftopols have been together for 16 years and used the same egg donor and gestational carrier for the birth of their daughter Zoe in 2006.

The Department of Health never contested that birth certificate, but policy had changed in the ensuing 20 months before the twins were born prematurely. The court had not ruled in time for the birth.

Their situation was complicated given that the Raftopols could not adopt because they were living abroad.

"The state didn't have the jurisdiction to grant us adoption rights," Anthony Raftopol said. "And we didn't believe we had to adopt.

"It wasn't an issue of whether we were good parents or not or an issue if we were a gay or straight couple," he added. "It was a family law issue and for the first time nationwide, someone was able to declare a parent outside the traditional boxes."

The ruling provides protection for children such as the Raftopols.

"It means that the moment they are born they have a clear ruling that two people are financially responsible and able to make decisions on their behalf," lawyer Ferrara said.

"Think of all the things that can go wrong with a child. Two parents make a decision to provide for their well-being. God forbid something happens and the child can't inherit from the parent."

The legal case drew the attention of gay legal groups such as Gay and Lesbian Advocates and Defenders, which submitted an amicus brief on behalf of the American Society for Reproductive Medicine, the American Academy of Assisted Reproductive Technology Attorneys, Connecticut Fertility Associates and New England Fertility Institute.

There is a wide variety among the 50 states regarding surrogacy arrangements and 20 states have yet to address the issue, according to Thomas Ude, senior staff attorney for Lambda Legal.

One of them is New York City where the non-genetic parents must turn to second-parent adoption, which, according to Ude, is "more complicated, time consuming and costly."

"It is a welcome sign of recognition by the Connecticut legislature and Supreme Court that, hopefully,, others will follow, that families are formed in many different ways and the law should reflect that," he said.

"The law hasn't kept up with the advances in reproductive technology advances," Ude said. "And the court made a good note of that. Throughout the country there are a hodge-podge of laws or lack of laws. Connecticut is leading the way."