Courts Continue to Shape Parental Status Law & U.K. Court Awards Custody to Gestational Surrogate

July 18 , 2016
by: Susan L. Crockin, J.D.
Orginally published in ASRM News July 2016

Courts Continue to Shape Parental Status Law for Former Same-Sex Partners 

At least four cases are working their way through state courts addressing the legal parental status and rights of former same-sex partners who have no genetic connection to the children they and their former spouse or partner had been raising. Maryland’s highest court, its Court of Appeals, reached a decision in one such case in July, Conover v. Conover. Similar cases are pending in Massachusetts, New York, and Florida.  Legally Speaking® reports on the Maryland court’s July decision and its underlying legal reasoning.

“De facto” parentage is a legal term used in many states to refer to an individual with some, but not necessarily full, parental rights, responsibilities or status, and has frequently been the basis for same-sex partners and other non-biologically related individuals raising a child to obtain some degree of legal status to their partner’s biological child or children. It typically involves, as it did in the Conover case, the initial consent of the biological or legal parent, and joint rearing of the child for some period of time. Each state can, and does, interpret this type of parental status as it sees fit under its own laws. With this decision, Maryland now joins the majority of states broadening the concept of “de facto” parental status. Cases pending in other states are raising similar and related issues.

The Conovers were a same-sex female couple when Brittany Conover conceived and bore a son, Jaxon, through artificial insemination with a sperm donor. The Maryland couple were married in DC when Jaxon was six months old. Michelle Conover was not listed on the birth certificate, and the couple never underwent an adoption. The couple later divorced, and Brittany Conover attempted to deny her former spouse parental status, custody and visitation. The issue on appeal was whether prior Maryland law would have required Michael Conover (now a transgender male) to prove either Brittany’s parental unfitness or exceptional circumstances, as is required for other third-parties seeking such rights.

A 2008 Maryland decision had denied same-sex partners, along with any other third parties seeking parental status, custody and visitation, “de facto” parental status, absent a finding of “exceptional circumstances” or parental unfitness, a ruling that has now been overturned in Conover v. Conover. In doing so, Maryland’s high court acknowledges that its old standard did not stand, “the passage of time,” and had been surpassed by modern law in most states, and by modern life for many families, including same-sex couples.

The unanimous court adopted a new four-part test for determining a de facto parent, citing case law from Wisconsin and New Jersey: 1) the legal parent must consent to and foster the third party’s relationship with the child; 2) the third party must have lived with the child; 3) the third party must perform parental functions for the child to a significant degree; and 4) “most important, a parent-child bond must be forged.”

The Maryland court rejected the application of a famous U.S. Supreme Court case, Troxel v. Granville (US 2000), which denied grandparents visitation rights against the wishes of parents. Its reasoning was that unlike the grandparent case, a de facto parent is not simply a third party and does not infringe on a fundamental parental right to control a child, as opposed to sharing that parental right with the legal parent by the legal parent’s initial consent and intention.

The court also relied on amicus (“Friend of Court”) briefs filed by legal scholars in finding its former ruling was out of step with the times in terms of both other states and current academic scholarship. Noting that, “gays and lesbians are particularly ‘ill-served by rigid definitions of parenthood,’” the court also surveyed the country and noted that a majority of states now recognize “de facto parent status” by statute or case law. The court acknowledged that “family law scholarship and the academic literature,” now endorse “the notion that a functional relationship—as well as biology or legal status—can be used to define parenthood.”

In its conclusion, the unanimous court wrote: “We overrule Janice M. (the 2008 decision) because it is “clearly wrong” and has been undermined by the passage of time. In light of our differentiation in [cite omitted], between “pure third parties” and those persons who are in a parental role, we now make explicit that de facto parents are distinct from other third parties. We hold that de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis. The best interests of the child standard has been “firmly entrenched in Maryland and is deemed to be of transcendent importance.” [cite omitted] With this holding we fortify the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child's close, nurturing relationships.

While the Court ruled it did not need to wait for legislation to reach this decision, Maryland state lawmakers who had attempted to pass such a law following the 2008 ruling, have been reportedly waiting for this case to be decided to again attempt to pass new legislation incorporating this more flexible standard.

In a separate concurring opinion, one justice agreed that in this case a de facto parent relationship should be found, but raised concerns that the court neglected to take into consideration situations involving two legal parent families with a potential third, potential de facto parent, and argued the ruling would improperly allow for the consent of only one legal parent and not both.

The cases pending in other states will be awaited with interest to see how the law develops. The Maryland court fell short of declaring that a de facto parent in the position of Michelle Conover is a full legal parent, an argument that is pending in the Massachusetts case (Partanen v. Gallagher).
Michelle L. Conover v. Brittany D. Conover, (MD Ct. Apps, July 2016)

UK Court Awards Custody to Gestational Surrogate in Facebook Surrogacy Arrangement with Couple’s Fourth Surrogacy   

A U.K. gestational surrogate who entered into a template agreement downloaded from the internet with a same-sex male couple she met on Facebook has succeeded in being awarded custody of the child she carried. Under U.K. law, a surrogate is presumed the legal mother until and unless she relinquishes that status after birth. In addition, while compensation beyond undefined “reasonable expenses” is not permitted under U.K. law, the predominant factor in surrogacy parentage actions is the “best interest of the child,” which has resulted in a number of court decisions allowing intended parents to have legal custody despite flouting compensation restrictions. Many U.K. legal practitioners and experts have called for an overhaul of the U.K. law, arguing it is outdated, and encourages ART participants to go abroad to carry out surrogacy arrangements that are prohibited in the U.K., which then create legal vulnerabilities and uneven outcomes for the children brought back into the U.K. This case, which appears to have had few safeguards in place, highlights those issues.

In this case, the parties reportedly met face-to-face only once, at a fast food restaurant, to sign a boilerplate agreement, agreeing to a payment of 9,000 British pounds, and then again in Cyprus for the transfer. There were reportedly no professional recruiters or coordinators involved. In awarding custody to the gestational surrogate, the court was highly critical of the arrangement. The couple had also had a prior surrogacy experience involving three children with the court, as noted below.

According to BioNews, a twin pregnancy resulted from two embryos created and transferred at a Cyprus clinic, using donor egg and sperm from one of the men. After the gestational surrogate began to have second thoughts soon after the transfer, and miscarried one of the fetuses, she reportedly did not tell the couple she was still pregnant. When the couple learned of the impending birth at the end of the pregnancy, they filed suit.

The judge, Justice Russell, found that it was in the child’s best interest not to be separated from the gestational surrogate and her partner, finding her “more emotionally available” to the child, providing a “warm, happy and loving home,” and discounted the fact that the couple had other biologically related children to this baby. The court awarded the couple visitation in the form of one weekend every eight weeks, and the biological father would retain parental responsibility.

The court criticized the entire process, including the procedures in Cyprus, and expressed concern for the gestational surrogate, who she described as a “vulnerable young woman in her very early twenties of limited income” with learning difficulties. The Court noted that in Cyprus the gestational surrogate felt isolated—apparently with no credit on her phone to make calls, “effectively excluded from discussions at the clinic, …which had a ‘huge impact’ on her pre-existing doubts about the arrangement.” 

Perhaps impacting the court’s analysis and ruling, this same justice had presided over an earlier case involving the same couple, and three children they had born of three different gestational surrogates within a three-month period of time in 2015. In that case, [In the Matter of the HFEA 2008 and in the Matter of A, B and C (infants), (2016) EWFC 33], none of the three women were making a parental claim. The couple had paid each of those women more than the current case, and the court criticized the couple for their “dishonesty” and “reprehensible behavior” in initially misleading the court as to the amounts they had paid the three women. Nonetheless, the court ruled that it was in the best interest of the children to grant the parental order and for the children to remain with the couple after hearing testimony from an appointed guardian ad litem who recommended that position and testified that the children were thriving and that without a joint parental order would not be legally recognized either as children of both men or siblings of one another (given two different genetic fathers).

The court noted in both cases the need for regulation of the surrogacy “market”, and the current case has intensified calls by many U.K. lawyers and others to revisit and update U.K. surrogacy law to better protect the participants and resulting children.

BioNews July 2016 (and email correspondence with various U.K. legal practitioners and scholars)


A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D.  

“Legally Speaking: A Column Highlighting Recent Court Decisions Affecting the ARTs and the Families They Create” returns to ASRM amidst extraordinary legal developments impacting the assisted reproductive technologies. The column will appear online monthly in ASRM News, with links to court decisions for those who wish to delve directly into the courts' opinions. There will be guest authors to add expertise and unique perspectives related to significant legal topics. “Legally Speaking®” will continue its commitment to not only report on new and noteworthy court cases but also analyze their potential impact and significance on the practice of ART.  --Susan Crockin, JD

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