Maine Bar Journal
Summer 2012 #1.
Test Tube Babies Meet Stone Age Statutes
Maine Bar JournalVOLUME 27 , NUMBER 3, Summer 2012Test Tube Babies Meet Stone Age Statutesby John C. SheldonMaine has no statute that determines the parentage of assisted reproduction techniques (ART) children-"test tube babies." The last time the legislature considered the issue the bill died in committee.(fn1) But adults want children, ART is legal and ART children keep coming, so the Law Court has started filling the void. Nolan v. LaBree,(fn2) which was decided in May, was the court's first step.
The parentage of such children is complicated-in some cases there may be eight individuals who may qualify as a "parent"(fn3)-so Justice Ellen Gorman cautiously circumscribed the decision. For example, she emphasized that this was an uncontested case-the only person who had objected to the plaintiffs' complaint was the district court judge who heard it. So the justices didn't have to resolve any dispute about, for example, whether the child's "mother" is the person who produced the egg, or the person who bore the child, or the woman who paid others to provide an egg and gestate the child on her behalf.(fn4) I've prepared this article to explain what the Law Court did and did not say in LaBree, and to discuss LaBree's implications.
Because things can get technical in this field-just take a look at the chart at the end of the article-I start the article with some definitions. Then I discuss LaBree's facts and the Law Court's decision-a decision so cautious that it's easier to discuss what the court didn't decide than what it did. I compare LaBree with its theoretical antithesis, the New Jersey Supreme Court's famous 1988 Baby M. decision,(fn5) and then discuss the similarities and differences, under Maine law, between declaratory judgments about parentage and adoption. I end the article with a lengthy discussion of procedural and substantive issues that await resolution: Absent a comprehensive statute, we're going to have to make up rules about who are and aren't necessary parties, what degree of proof our courts should require, and what kinds of parentage orders are appropriate. I also offer suggestions.
These definitions may help the reader follow the discussion.
Gamete: an egg or a sperm cell.
Zygote: a fertilized egg before attachment to the uterine wall.
Embryo: a zygote after attachment to the uterine wall; once a zygote becomes an embryo, the woman to whose uterus the embryo is attached is deemed pregnant.
Surrogate mother: a woman who becomes pregnant with an embryo that is the product of one of her own eggs. She is genetically related to the embryo. She has agreed to bear the child on behalf of another person, and not to claim parental rights to the child. For purposes of this article the method by which she became pregnant makes no difference.
Gestational carrier: a woman who becomes pregnant with an embryo that is the product of another woman's egg. She is genetically unrelated to the embryo. Like a surrogate, she has agreed to bear the child on behalf of another person and not to claim parental rights.
Legal parent: a person with full parental rights and responsibilities as to a child by unambiguous operation of statute or by court decree.
The plaintiffs in the case were the prospective parents of the child, Desmond. Medical technicians had created a zygote from Celia Nolan's egg and Robert Nolan's sperm. Kristin LaBree agreed to gestate and bear the child on the Nolans' behalf.
The day the child was born the Nolans filed a declaratory judgment action in the Bangor District Court seeking to have themselves named on the birth certificate as Desmond's parents, and to have Kristin and her husband Jeffrey (whom the Nolans named as defendants) excluded from the birth certificate.(fn6) All parties agreed to this disposition of the case.
The district court judge declared that Robert is Desmond's "father," but declined to name Celia as the "mother" because Maine lacks a statute to determine maternity.(fn7) So, the judge believed, the district court lacked subject matter jurisdiction to grant Celia's request. Instead, the judge met Celia halfway and declared her a de facto parent.(fn8) In addition, the judge declared that "[t]his award is to the exclusion of rights and responsibilities for Defendants Kristen and Jeffrey Labree."(fn9)
The Nolans appealed, claiming that the judge should not have limited Celia to de facto parenthood, and that the "exclusion of rights and responsibilities" for Kristen and Jeffrey was inadequate. Kristen and Jeffrey supported the Nolans' request and did not appear at oral argument.
The Law Court granted the Nolans' appeal. Justice Gorman's decision remanded the case to the trial court with instructions "for a judgment that Celia Nolan is the mother of the child, and that the LaBrees are not the parents of the child."(fn10) The Nolans could later submit the revised judgment to the Department of Health and Human Services (DHHS) and request a corrected birth certificate.(fn11)
What the Court Didn't Decide
When I say the Law Court was cautious, I mean really cautious. Its substantive contribution is as narrow as the facts permit: The district court has the authority to declare maternity, under these facts, in an uncontested case, period. In a field as complicated as ART parentage, that's like cultivating one square foot of your garden: What about everything else?
To start with, what about the district court judge's concern that Maine has no maternity statute? Justice Gorman found authority for the district court to declare maternity in 19-A M.R.S.A. § 1556, which grants the district court the authority to declare "parentage,"(fn12) a term, she said, "that includes both paternity and maternity."(fn13) This endows the district court with authority to declare maternity because "our analysis of a statute ends with its plain language when the statute's meaning is clear and the result is not illogical or absurd."(fn14)
The problem is that what Justice Gorman cited for the district court's authority to determine a woman's "parentage" appears in the Uniform Act on Paternity, which is Subchapter 1 of 19-A M.R.S.A. Ch.53: Paternity. In the context of that statute, and according to all the legislative history I've been able to discover,(fn15) "parentage" refers to male parentage only. And, legislative intent aside, there's this additional problem: Defining maternity with chapter and verse on paternity works only if the two conditions are absolutely synonymous, or absolutely mutually exclusive. Obviously they're not synonymous. Nor are they absolutely mutually exclusive in the ART era because calling Celia Nolan "not the father" doesn't make her the mother. Justice Gorman's reliance on the paternity statute is, frankly, not "not illogical."
What this tells us is that the Law Court's decision was result-oriented- the justices wanted to release Maine family law from prudish, Eisenhower-era restraints. What this doesn't tell us, however, is why the court relied on an inapplicable statute to do so. Why not approach the problem as the court has in the past, when it resolved the contradiction between an anachronistic statute and modern social standards by resorting to Maine's Equal Protection Clause. In Beal v. Beal(fn16) the Law Court addressed the fact that Maine's hoary alimony statute rendered men ineligible for alimony. Notwithstanding that the statute expressly extended alimony only to women, the court held that the Equal Protection clause of Maine's Constitution implicitly extends that right to men: Sex discrimination may not "be justified by outdated sexual stereotypes concerning the respective roles of men and women."(fn17)
The court could have done the same thing in LaBree, like this:
A prospective mother must have the same access to parenthood that a prospective father has, notwithstanding statutory inconsistency. Since prospective fathers can obtain sperm, prospective mothers must be allowed to obtain the more-complicated female equivalent: an egg and a womb.
So why did the court expressly side-step the Nolans' constitutional argument?(fn18) The reason, I think, is because the decision was purely prag-matic-the product of the get real attitude that produced the famous California court of appeals case, In re Marriage of Buzzanca.(fn19)
John and Luanne Buzzanca had contracted for a child with what I take to have been a gestational carrier. The embryo with which the carrier became pregnant was unrelated to either of the Buzzancas. After the child was born, they split up and John claimed he couldn't be saddled with responsibility for the child because he wasn't genetically related to her.
After struggling with inadequate statutes,(fn20) the court concluded:
[T]he Legislature has already made it perfectly clear that public policy (and, we might add, common sense) favors, whenever possible, the establishment of legal parenthood with the concomitant responsibility. . . . [F]or all practical purposes John caused Jaycee's conception every bit as much as if things had been done the old-fashioned way.(fn21)
Common sense: You caused it, you get it. Legally artless, perhaps, but wholly satisfactory.
LaBree establishes this negative: There is no legal or policy basis to prevent court endorsement of such agreements as the Nolans' and the LaBrees'. This distinguishes LaBree from...