Surrogacy - the Law in Connecticut
| Jurisdiction | Connecticut,United States |
| Publication year | 2021 |
| Citation | Vol. 79 Pg. 59 |
| Pages | 59 |
79 CBJ 59. SURROGACY - THE LAW IN CONNECTICUT
VOLUME 79, NO. 1
Surrogacy is one method that same-sex couples might choose to pursue when making the decision to have children, and it is a method favored by gay male couples who would like for at least one of the fathers to have a biological tie to the child. There generally are two types of surrogacy arrangements: (1) traditional surrogacy - a surrogate mother is inseminated with sperm donated either by the intended biological father or an anonymous sperm donor and an embryo is formed by that donated sperm and the surrogate mother's egg; this makes the surrogate both the genetic and gestational mother to the resulting child; and (2) gestational surrogacy - a surrogate mother has transferred into her uterus an embryo formed from sperm donated by the intended biological father or anonymous sperm donor and an egg donated by the intended biological mother or an anonymous egg donor; this makes the surrogate a gestational mother with no genetic tie to the resulting child.(fn1)
The validity and enforceability of surrogacy agreements vary from state to state (fn2) with some states, such as Illinois (fn3) permitting such agreements and, by statute, setting forth the necessary requirements for establishing a parent-child relationship where the child has been born pursuant to a surrogacy agreement. Other states, such as Indiana(fn4) and New York,(fn5) by statute consider surrogacy agreements void and unenforceable as against public policy. Many states that do permit sur-
* Of the Connecticut Bar.
1 This type of surrogacy arrangement was used in the recently decided California case of K.M. v. E.G., 37 Cal. 4th 130, 117 P.3d 673 (2005). One partner of a same-sex couple provided the eggs used to create embryos carried by the other partner. The California Supreme Court concluded that, in that situation, both the gestational and genetic mothers were the children's legal parents.
2 For a breakdown on the validity of surrogacy agreements by state, see "Surrogacy Laws by State" available at http://www.allaboutsurrogacy.com/surrogacylaws .htm.
3 Gestational Surrogacy Act, 750 ILL. COMP. STAT. 47/1 et seq. (fn4)IND.CODEANN. § 31-20-1-1 etseq.
5 N.Y. CLS DOM. REL. § 121 et seq. In addition to declaring surrogacy agreements void and unenforceable, New York law imposes a civil penalty on intended parents who pay more than the reasonable and actual medical expenses associated with artificial insemination, in vitro fertilization and/or the birth of a child to a surrogate. For all other individuals involved in the making of a surrogacy contract, the possible penalties include a fine for the first offense and felony conviction for each offense thereafter. N.Y. CLS DOM. REL. § 123.
rogacy agreements do so only where the agreement provides for a gestational surrogate, not a traditional surrogate. Connecticut has no statute either permitting or prohibiting parties from entering into surrogacy agreements, though it appears that such agreements are permitted. While there are no published cases in Connecticut that specifically address the validity and/or enforceability of surrogacy agreements, there have been several cases where surrogacy agreements have played an important role in the factual scenarios addressed by the courts.
I. THE CASES
A. Doe v. Doe
The Connecticut Supreme Court has decided two cases where the existence of a surrogacy contract has played an important part in the scenario before the court. The first of these cases, Doe v. Doe,(fn6) was a marital dissolution action, in which custody of the minor child was at issue. Several months prior to their marriage, in 1983, the plaintiff, Jane Doe, and the defendant, John Doe, entered into a contract with a woman that provided that the woman would be inseminated with John Doe's sperm and that, following the birth of the child, the woman's parental rights would be terminated.(fn7) After the child's birth, the surrogate surrendered the child to the plaintiff and defendant, and, although neither party formally adopted the...
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