The Maine Supreme Judicial Court has just heard a case of first impression in that state and will ultimately decide whether Intended Parents, working with a gestational carrier in Maine, can be considered the legal parents of their child or whether they will have to proceed with an adoption to finalize their parental rights:

One woman provided the egg, another woman provided the womb. The Maine Supreme Judicial Court is now being asked to consider which woman should be listed as the mother on the baby’s birth certificate.

The law court’s ruling on the subject could be groundbreaking. The decision has the potential to lay the groundwork for how courts would go about legally determining motherhood in future cases, as it’s now largely uncharted territory for Maine’s courts. On Thursday, the state’s highest court heard oral arguments in a case in which Robert and Celia Nolan are appealing a Bangor District Court ruling that left the names of gestational carrier Kristen Labree and her husband, Jeff, on the birth certificate of a baby born in 2010.

The Thursday hearing was unusual in that only one lawyer presented his case before the court, as both parties are in agreement on the issue. Attorney Christopher Berry told the justices there’s no dispute over custody or parental rights and the Labrees agree that their names should be replaced on the birth certificate documentation by those of the Nolans. The Labrees, he told the court, believe their role in the surrogacy agreement has been fulfilled.

The Nolans sought a declaration at the District Court level that they are the mother and father of the child, but while the lower court found that Robert Nolan had established paternity, it ruled that it lacked the authority to declare the maternity of Celia Nolan. The lower court ruling in the Nolan case represented the latest in what Supreme Judicial Court Justice Ellen Gorman described as a historically uneven response to maternity debates at the District Court level. “Your firm has taken these sorts of cases to court across the state and have been receiving different rulings from different district courts,” Gorman told Berry, whose firm specializes in adoption and surrogacy law. “Shouldn’t we say the best practices in determining the maternity is DNA testing?”

Berry told the justices Thursday that no DNA test had been performed in the case immediately before them, and Justice Jon Levy questioned whether the high court would be setting a cumbersome precedent by requiring such testing to determine maternity in gestational surrogacy cases. Berry said the parties do have an affidavit from the doctor testifying to the fact that Celia Nolan’s egg was used in the in-vitro fertilization process.

Levy told Berry the Supreme Judicial Court must be careful in its ruling even though the Nolans and Labrees are in agreement over the preferred outcome, as the decision in the Nolan case could be used to settle future cases in which there is a dispute over parental rights. Chief Justice Leigh Saufley agreed. She said overturning the District Court’s ruling that it lacks the authority to declare maternity would mean, moving forward, district courts in Maine will indeed have that authority. She noted such a ruling in the Nolan case could have the impact of wiping away the rights of gestational carriers in future cases in which the details are less clear or there is disagreement between the surrogate mother and genetic mother.

The Maine Supreme Judicial Court will issue its decision on the case in the coming months.

Even if the Maine Supreme Judicial Court finds that the Nolans are the legal parents, based upon my reading of the Justices’ questions, it will likely do so on the grounds that both Mr. and Ms. Nolan are genetically related to their child. What will probably be left unresolved is what happens if both Intended Parents are not genetically related due to the use of an egg, sperm or embryo donor. As an advocate for Intended Parents, I would hope that the Justices follow the lead of the California Supreme Court in Johnson v. Calvert and focus upon the parties intentions as articulated in their surrogacy contract rather than focusing upon the presence of a genetic connection as this would avoid future challenges where both parents are not able to prove consanguinity with their child.