Gestation moved faster than litigation. After Fishman attempted to have his clients declared the legal parents of the infant in Rockville Superior Court, DePrimo moved to dismiss on multiple jurisdictional grounds. Before the Connecticut courts ruled, says Brail, Kelley gave birth to Baby S.
A Michigan birth certificate was issued, and Kelley, as the baby's mother, placed the baby for adoption with a seven-member Michigan family. The biological father, Stoyanov, eventually terminated his parental rights. According to an affidavit from a fertilization doctor, the in vitro fertilized egg was actually donated by an anonymous donor, requiring no further surrender of parental rights.
Although the legal case has ended, it will certainly not be the last time a surrogacy case is litigated here.
There are several reasons why Connecticut is an attractive legal destination for would-be parents in other states seeking a baby through gestational surrogacy. Sharon Lamothe, of Seattle, Washington, says that Connecticut is regarded nationally as one of the most "surrogacy friendly" states in the nation, for several reasons.
Connecticut has been a pioneer in recognizing same-sex unions and marriages. Through court decisions, the state has made it easier for non-biological parents to appear as parents on birth certificates, without going through the process of adoption.
In 2005, as a surrogate for two New York men, Lamothe stayed in Greenwich and had a baby under a surrogacy agreement, with the adoption finalized in Norwalk Superior Court. She was represented by Donald B. Sherer, an adoption lawyer and former state legislator in Stamford. Lamothe, originally from Maine, had a surrogacy business in Florida, and in 2007 moved to Washington state to start a business advising couples on their fertility options. "You can't do paid surrogacy in Washington state," she noted. So she picks states for her clients based on their laws. "I send married couples to Texas and Florida, singles and gays to Connecticut and Illinois."
When Lamothe acted as a surrogate in Connecticut, she had a male same-sex couple as clients. "I had to go to [Norwalk] family court with the intended parents, very pregnant, and tell the judge this is not my child, I'm not claiming the child," Lamothe said. "We actually had to educate the judge because we were one of the first cases she had seen."
DePrimo, who has a right-to-life philosophy, said he'd like to see Connecticut join New York and Michigan in rejecting surrogacy contracts as against public policy. The crazy quilt of state laws is not a good situation, he says. "There are states that declare these agreements void as against public policy, there are states that have statutory schemes that approve of the agreements, and there are other states, like Connecticut that are completely silent about it.
Having navigated the dramatic differences between states in the Baby S. case, DePrimo feels the case came out as well as it could, under the circumstances. "The reason there is no federal family law, and that states are left to decide their own laws of marriage, divorce and custody, is because the Constitution left those matters to the states. DePrimo said he doesn't like the notion that birth-contracts-for hire would become a new area of federal legislation under the Commerce Clause.
"You can't have contracts over a human life," he said. "People aren't soybeans."•
Subscribe to The Connecticut Law Tribune
