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Abstract

In Nolan v. LaBree, a husband and wife filed a complaint seeking a judgment declaring their legal parentage of a newborn child born via gestational surrogacy. All parties surrounding the birth of this child entered into a surrogacy contract and are in agreement that the genetic mother and father bringing this suit should be declared as the legal parents. When the child was born, however, the birth certificate did not reflect the intentions of the contract, listing the parents as the surrogate mother and the surrogate mother’s spouse. The trial court, following an uncontested hearing, declared the requested paternity determination but held there was no statutory authority permitting a similar determination of maternity and, therefore, declined to make such a declaration. The plaintiffs appealed to the Maine Supreme Judicial Court, sitting as the Law Court, contending that the trial court erred in its aforementioned denial of maternity declaration based on lack of statutory authority. This case brought an important issue to the Law Court regarding parentage in artificial reproductive technique births. The issue invited the Law Court to determine the judicial remedy with respect to parentage when a child is born via gestational surrogacy, where the legislature has avoided such controversial topics, creating uncertainty for both courts and families in Maine. The Law court in Nolan interprets the sparse statutory language in a way that ultimately provides for a declaration of parental in the case at hand, but the question becomes: is it enough? This Note considers whether the Law Court’s rationale and narrow holding, interpreting statutory language as providing power to the courts to determine and declare both paternity and maternity following a birth via surrogacy, is adequate, or whether the legislature should take further action to provide concrete guidance to both families and courts involving surrogacy arrangements where all parties are in accord as to the identity of the intended parents. This Note next reviews the development of surrogacy agreements and private ordering in family law within the jurisdictions that have addressed the issue. It moves on to reveal and contrast the multifarious approaches taken by different states. This Note then discusses the treatment of such agreements in Maine, ultimately revealing the lack of attention given to the area surrounding artificial reproductive techniques. This Note recognizes the unwillingness to adopt comprehensive legislation on the topic but suggest that the issues, once deemed controversial, are less controversial today and a course of action must be embarked upon to keep pace with societal changes and scientific developments. The ultimate recommendation proffered by this Note is to take the first step down this path of modernizing Maine law by minimal legislative action permitting courts to validate certain gestational surrogacy agreements, which would in turn have the effect of automatically terminating the parental rights of the surrogate and her husband, if any, upon the child’s birth.

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