A gestational carrier agreement is an agreement covering the birth of a child through surrogacy, wherein an individual or a couple, enter into an agreement with a woman to carry and give birth to their child. In some cases, the two intended parents are the genetically related parents of the child to be born. In other cases, the intended parent(s) use an egg donor and / or sperm donor and therefore, the intended parent is not genetically related to the child to be born. In either case, counsel has brought complaints seeking the issuance of pre-birth orders pursuant to Conn. Gen. Stat. §7-48a for genetic and non-genetic intended parents of children being carried by gestational carriers.

Currently, Connecticut is in a state of disarray regarding the issuance of these pre-birth orders by the Superior Court. For approximately the past six months, the CT Department of Health has objected to the Superior Court issuing orders unless the intended parents are genetically related to the child(ren).

At the state Superior Court level there is a split of authority regarding whether the Conn. Gen. Stat. §7-48a, as written, allows this form of relief. The Connecticut Attorney General's office through the Department of Health and Judge John D. Boland in the opinion Oleski v. Hynes, 2008 Conn. Super. LEXIS 1752 (July 9, 2008), has advocated for the position that Conn. Gen. Stat. § 7-48 only allows for a genetic parent to be named on a replacement birth certificate and that the correct procedure for a non genetic parent to obtain parental rights is through a co-parent adoption in the Probate Court.

To the contrary, Judge Lloyd Cutsumpas in Griffiths v. Taylor, 2008 Conn. Super. LEXIS 1534 (June 13, 2008), and an overwhelming number of Superior Court Judges have advocated for the position that Connecticut allows for a finding of intended parentage and have willing signed orders supporting the same. Recently, however, once these orders are issued, the state appeals the ruling of the Superior Court thereby delaying the implementation of the Superior Court's order and leaving the gestational carrier as the legal parent.

This office currently represents two intended parents at the Appellate Court level (See Raftopol v. Ramey, et al). At the trial court level Judge Kenefick, granted the intended parents petition for a pre-birth order and the state subsequently appealed. Because the intended parents lived in Romania they were unable to obtain jurisdiction for a co-parent adoption or enter into a same sex adoption based upon Romanian law. Accordingly, the non genetic father has no legal parental rights until Appellate Court rules on the state's appeal .

Until the Appellate Court hears argument on these matters and issues a decision, no representations can be made regarding the ability of any attorney to obtain a pre-birth order without the matter being appealed. Even after an order from the Appellate Court is released, the party denied relief can petition the Supreme Court for cert. In the final analysis, the timeframe for a binding ruling from a higher court could take more than two years.

Even with the difference in viewpoints, both the courts and opposing counsel to these actions agree that the correct manner to address this issue is though the legislative process and not the courts. If the legislature does choose to address this issue, the constituency can then decide how best to clarify this legislation as opposed to judges, clerks and lawyers who attempt to infer intent through legislative histories. If the statute is not clarified numerous issues will continue to serve as problems for parties to a gestational carrier agreement.

In that regard, this office has lobbied members of the legislature to clarify Conn. Gen. Stat. §7-48a. Representative Thomas Drew introduced House Bill 1137 which sought to clarify this law. Raised Bill 1137 seeks to amend existing law by authorizing a court of competent jurisdiction to make a finding of intended parentage for parents of children conceived through assisted reproduction, and pursuant to a gestational carrier agreement.

Currently the bill is with the Connecticut State Senate awaiting action. Hopefully, the legislature will take action to ensure that courts are provided with guidance in implementing these orders and are not subject to analyzing and interpreting legislative intent.

More and more individuals who can either not conceive or not carry children to term are utilizing assisted reproductive clinics to make their dreams of a family a reality. To ignore this new and progressive field of medicine does a disservice to the children conceived through this form of technology and the intended parents who seek to raise their children in a loving home.