By Judith Berry, Esq.
When Celia and Robert Nolan wanted to add a child to their family, they knew it would require assisted reproductive technology (ART). Celia is known as a “DES daughter”; Celia was unable to carry her own child due to the side effects from her mother being prescribed the diethylstilbestrol (DES) drug during pregnancy. However, Celia and Robert still dreamed of having a child connected to them genetically. Celia knew their only option for this was finding a gestational carrier. She met Kristen LaBree, who had children of her own and was aware through friends of the difficult struggles couples faced with infertility. Kristen agreed to be Celia and Robert’s gestational carrier. Unfortunately, a legal nightmare would follow.
At the time, the legal procedure in Maine was for the intended parents and the gestational carrier (GC) to petition a court in order to establish the intended parents as having parental rights and responsibilities, and for the birth certificate to reflect that. However, the judge refused to do so on the grounds that there were no laws permitting it. Thus, Kristen was the legal parent due to the fact that she gave birth and remained listed on birth records. Everyone was distressed. Celia lived in fear that she would be barred from making legal decisions for her child, and Kristen worried that she may be forced to parent the Nolans’ child.
After numerous court hearings, the case was heard before the Maine Supreme Court years after the child’s birth and became known as Nolan vs. LaBree. In a landmark decision, the Maine Supreme Court ordered that the Nolans were the parents and that the birth certificate should be changed. Furthermore, the court stated that the laws did not reflect medical advances in family building, which was a message to the state legislature. Thus, began a two year saga to update Maine Family Law.
A group of judges, lawyers and mental health professionals joined together to draft new legislation. The group studied other states’ laws and assisted reproductive technology (ART) practices, as well as consulting with national experts and organizations including RESOLVE New England (RNE). The result was LD 1017, An Update to Maine Family Law, which was presented to the legislature this year. The bill had its legislative hearing in April, for which RNE submitted supportive written testimony. Celia Nolan, Kristin LaBree, and several other families with their children present, testified at the hearing. Both Celia and Kristen’s testimony, along with others, was emotional and compelling. At times the hearing was filled with children’s voices, which served as a powerful reminder of the miracles of ART. Several legislators later commented that seeing the parents and children and hearing their stories brought reality into the room.
The legislation passed in June 2015 and goes into effect as of July 2016. The chapters that are most relevant to the RNE community, Chapter 7 Parentage by Assisted Reproduction and Chapter 8 Gestational Carrier Agreements, establish guidelines for courts and families for family building.
Highlights of the new law include:
- An egg or sperm donor is not a parent unless married to the recipient, or intended parentage is specified in a written agreement.
- Pre-birth and after birth parental rights orders are obtained under certain statutory standards.
- Intended parents’ names are on the birth record at time of birth IF they have a valid agreement, which meets certain statutory standards and is certified as such by a Maine attorney.
- Legal protections created for gestational carrier, intended parent(s) and most importantly, a child born of ART procedures.
- Traditional surrogacy (egg donor also gives birth to the child) is allowable between family members.
- Clear delegation of parental rights and responsibilities for intended parents in ART and gestational carrier cases without any marital qualifications.
The drafters of the law and the Maine state legislature agree that this act recognizes medical advances now routinely used in family building, and protects children born of such procedures. As of July 2016, in ART/GC matters, the legal status of intended parents will be recognized at the time of birth of a child born in Maine if certain procedures are followed. There are clear legal standards to determine parental rights and responsibilities. Most importantly, this act is truly in children’s best interest. Maine is proudly now one of several states that recognizes medical advances in family building and provides legal protections for all.
Judith Berry is an attorney in private practice at Berry Law, PA in Gorham, Maine. Her practice focuses on adoption and surrogacy. An adoptive mother, Judy was honored to be part of the effort to draft and pass LD 1017. She sincerely thanks RNE for its professional support of this legislation.