Noah and Dennis at their son’s birth (click to enlarge).
Every day, both couples and singles dream of starting or expanding a family. But for many people who don’t have the biological ability to carry a child, fulfilling that dream is a challenge. Often, the answer is to have a surrogate carry a child. And as you’ve seen in this column before, sometimes things go very wrong. But other times, things go just a little bit haywire, and history is made.
Noah and Dennis had dreamed of raising a child together. And they knew that surrogacy was the right choice for them (given that they lacked uteruses). With the help of their family in Colorado, they found Amber, a lactation specialist who was excited to help the couple fulfill their dreams. Amber agreed to be their surrogate. The process was fairly smooth – for a surrogacy arrangement.
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Legal Step 1—The Contract. Because Noah and Dennis met Amber through family, they bypassed the usual course of using a “matching agency.” Each side hired an attorney to help draw up and negotiate a legal agreement before moving forward. The contract negotiation went smoothly, and the agreement included standard language that Amber would not leave the state toward the end of her pregnancy. In this context, the provision was meant to ensure that Amber gave birth in the surrogacy-friendly state of Colorado. In other states, Noah and Dennis could end up having to adopt their own child or generally not recognized as parents to their own child. Similarly, Amber could be unexpectedly stuck with financial responsibility for a child not intended to be hers.
Legal Step 2—Securing Parental Rights. Fortunately, Amber became pregnant after the first embryo transfer. The next legal step involved securing parental rights via a pre-birth parentage order. This gives the parents the right to be on the birth certificate from the outset, even when someone else is delivering the baby. The parties successfully submitted a petition and received a Colorado court order naming Noah and Dennis as the legal parents of the child Amber was carrying.
An Unexpected Turn of Events. Unexpectedly, Amber’s spouse lost his job. He was then offered a great employment opportunity in the state of Montana. Amber did not want to be geographically separated from her husband and two kids, so she moved with them to Montana. But Amber also assured Noah and Dennis that she would return to Colorado well before her due date in order to give birth to their child in Colorado.
Legally, it was unclear how Montana would treat a Colorado pre-birth parentage order. Moreover, it was very unclear if Montana courts would grant the same order to a same-sex male couple intending to be parents together.
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You probably guessed what happened next. Despite Amber having no history of pre-term labor, she went into labor early and gave birth in Montana.
A First for Montana. Although Noah and Dennis had a Colorado court order in hand naming them as the legal parents, the hospital’s legal counsel felt it was insufficient for Montana purposes.
Noah and Dennis connected with a local Bozeman attorney named Chris Gillette. Chris was able to present the case to a local judge on short notice. Fortunately, the judge had no problem domesticating the Colorado parentage order (phew!), and Noah and Dennis’s baby was granted the first two-father birth certificate ever issued in Montana!
Attorneys in this area agree that we are still dealing with the wild west. In many ways, the field of Assisted Reproductive Technology is uncharted territory with unknown obstacles and unknown results. My clients were lucky that the legal process ultimately went smoothly, and they got the result they needed. They were able to take their baby boy home to New York after only a few days in the hospital in Montana, with a birth certificate noting that they both were the legal parents of their child. And history—albeit inadvertently—was made.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at [email protected].