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

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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."

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