McLACHLAN, J.
This appeal raises the question of whether Connecticut law permits an intended parent
The defendant department of public health (department) appeals from the judgment of the trial court in favor of the plaintiff Shawn Hargon, an intended parent under the gestational agreement.
The record reflects the following facts, either as found by the trial court or undisputed. The plaintiffs, who were domestic partners living in Bucharest, Romania,
Prior to the expected delivery date, the plaintiffs brought this action, seeking a declaratory judgment that the gestational agreement was valid, that the plaintiffs were the legal parents of the children and requesting that the court order the department to issue a replacement birth certificate reflecting that they, and not Ramey, were parents of the children. The department responded that the court lacked jurisdiction over the matter because Hargon did not allege that he had conceived the children and because the court lacked jurisdiction to terminate the parental rights of the gestational carrier, the egg donor, and any husbands either may have, which the department argued would be a necessary prerequisite to the declaration that
We first turn to the issue of whether the trial court lacked subject matter jurisdiction to declare Hargon a legal parent of the children because Hargon was not biologically related to the children and did not adopt them. Included within this issue is the question of whether the court was required, as a prerequisite to making any determination regarding Hargon's parental status, to terminate Ramey's parental rights, and, if so, whether the court had jurisdiction to terminate those rights. We conclude that: (1) because Ramey did not have any parental rights with respect to the children, the termination of those nonexistent rights was not a necessary prerequisite to a determination of Hargon's parental status with respect to the children; and (2) the court had jurisdiction to issue a declaratory ruling regarding Hargon's parental status.
Preliminarily, we address the department's claim that the trial court lacked subject matter jurisdiction to declare Hargon a parent because the termination of Ramey's parental rights—over which the trial court would have lacked jurisdiction— was a necessary prerequisite to Hargon's acquiring parental status with respect to the children.
Our statutes and case law establish that a gestational carrier who bears no biological relationship to the child she has carried does not have parental rights with respect to that child. We have long recognized that there are three ways by which a person may become a parent: conception, adoption or pursuant to the artificial insemination statutes.
In 1975, the legislature provided the third means by which a person may gain parental status. Public Acts 1975, No. 75-233, now codified at General Statutes § 45a-774. Section 45a-774 provides: "Any child or children born as a result of A.I.D. shall be deemed to acquire, in all respects, the status of a naturally conceived legitimate child of the husband and wife who consented to and requested the use of A.I.D." "`A.I.D.'" is defined as "artificial insemination with the use of donated sperm or eggs from an identified or anonymous donor." General Statutes § 45a-771a (2). "`Artificial insemination'" is specifically defined to include both "intrauterine insemination and in vitro fertilization. . . ." General Statutes § 45a-771a (1). Accordingly, a child born to a married woman and conceived through artificial insemination by an egg or sperm donor is the child of the wife and husband who requested and consented to the use of A.I.D.
In Doe v. Doe, supra, 244 Conn. at 435, 447, 710 A.2d 1297, we reaffirmed the principle that, under the then existing statutory scheme, parentage could arise only by conception, adoption, or by way of the artificial insemination statutes. Doe involved a custody dispute within a dissolution action and concerned the defendant father's biological child, who was conceived
Under any of the three specified ways of acquiring parental status, as set forth both in our statutes and interpretive case law, Ramey is not a parent of the children in the present case. It is undisputed that she is neither the biological nor the adoptive mother to the children. Nor does she fall within the parameters of the artificial insemination statutes. Accordingly, Ramey did not have parental rights that required termination before Hargon could acquire parental status with respect to the children.
The department also claims that the trial court lacked jurisdiction to declare Hargon a parent. Specifically, the department argues that, because a person may become a parent only by conception, adoption, or by compliance with our statutes governing artificial insemination, and because Hargon does not claim parentage by virtue of any of these three avenues, the trial court lacked jurisdiction to consider Hargon's request for a declaratory judgment that he is the parent of the children. We conclude that the trial court had jurisdiction over the matter.
Pursuant to General Statutes § 52-29, the declaratory judgment statute,
The jurisdictional questions now resolved, we turn to the merits of the department's claim that the trial court improperly concluded that § 7-48a conferred parental status on Hargon by virtue of the gestational agreement. The plaintiffs contend that § 7-48a evidences a legislative recognition of the validity of intended parentage. Accordingly, they claim that, pursuant to § 7-48a, a court of competent jurisdiction may declare Hargon to be the parent of the children, and, consistent with that declaratory ruling, may order the department to issue a replacement birth certificate reflecting his parental status. The department claims that the legislature intended that § 7-48a would allow only intended parents who are also the genetic parents of the children to gain legal parental status without first adopting the children. We conclude that § 7-48a allows an intended parent who is a party to a valid gestational agreement to become a parent without first adopting the children, without respect to that intended parent's genetic relationship to the children. Consistent with that conclusion, we conclude that the trial court properly ordered the department to issue a replacement birth certificate listing Hargon as parent of the children. We emphasize that the court's order to the department to place Hargon's name on the replacement birth certificate follows from its declaratory judgment concluding that Hargon is a parent to the children. No one should misunderstand this opinion to state that the department, by placing Hargon's name on the replacement birth certificate, or by refusing to do so, confers or declines to confer parental status on Hargon. In this particular case, that relationship was created by the valid gestational agreement, and that relationship is accurately reflected by naming Hargon as a parent to the children on the replacement birth certificate. A birth certificate is a vital record that must accurately reflect legal relationships between parents and children—it does not create those relationships. General Statutes §§ 19a-40 and 19a-42; see footnotes 33 and 34 of this opinion.
Preliminarily, we must note that because in the present case the department
As directed by § 1-2z, we begin with the text of the statute. Section 7-48a provides in relevant part: "On and after January 1, 2002, each birth certificate shall be filed with the name of the birth mother recorded. If the birth is subject to a gestational agreement, the Department of Public Health shall create a replacement certificate in accordance with an order from a court of competent jurisdiction not later than forty-five days after receipt of such order or forty-five days after the birth of the child, whichever is later. Such replacement certificate shall include all information required to be included in a certificate of birth of this state as of the date of the birth. . . ." (Emphasis added.) What is clear from the text of the statute is that if the birth is subject to a "gestational agreement" and if a court of competent jurisdiction orders the department to do so, the department is both authorized and required to issue a replacement birth certificate in accordance with that order. It follows that, because some gestational agreements would justify a court order to the department to issue a replacement birth certificate, at least some gestational agreements are valid under Connecticut law. Beyond that, however, the statutory text gives rise to numerous ambiguities. For example, although § 7-48a initially provides that the name of the birth mother shall be placed on the birth certificate, it does not define the term "birth mother. . . ."
Section 7-48a says nothing about the nature and scope of the court order. It is, therefore, not clear whether § 7-48a sets forth merely procedural guidelines or effects a substantive change in the law. In other words, it is possible that the "court order" contemplated by the statute is merely a ministerial order for the issuance of a replacement birth certificate. It is also possible that § 7-48a effects a substantive change in the law, creating a new means by which a person may become a parent, thus justifying an order declaring parentage. That is, does § 7-48a contemplate, as happened in the present case, a court issuing a declaratory judgment that the intended parents are, by virtue of the gestational agreement, legal parents, and an order consistent with that judgment directing the department to issue the replacement birth certificate? Additionally, § 7-48a does not set forth any guidelines as to who may qualify, and by what means, to be named as a parent on a replacement birth certificate.
Related statutes provide little guidance in resolving the many ambiguities suggested by the text of § 7-48a. Although the phrase "gestational agreement" appears in three related statutes within chapter 93 of the General Statutes, which governs registrars of vital statistics, the phrase is not defined in any of those provisions. The definition section of that chapter unhelpfully defines "`[p]arentage'" as including "matters relating to adoption, gestational agreements, paternity and maternity. . . ." General Statutes § 7-36(13). The broad wording of that definition does not clarify the meaning of "gestational agreement" or provide guidance as to who may be named as a parent on a replacement birth certificate pursuant to § 7-48a. The remaining two references to "gestational agreements" are in General Statutes §§ 7-51 and 7-51a, which establish rules governing access to
We observe that in interpreting the text of § 7-48a, we write on a clean slate. This court has not previously construed this statute. Compare Hummel v. Marten Transport, Ltd., 282 Conn. 477, 496, 923 A.2d 657 (2007) (recognizing that in interpreting statutory language that had been construed in earlier decisions, court was not writing on "clean slate" and relying on prior judicial interpretations to construe statute's plain meaning). Although Doe v. Doe, supra, 244 Conn. at 403, 710 A.2d 1297, and Remkiewicz v. Remkiewicz, supra, 180 Conn. at 114, 429 A.2d 833, address related issues, both cases were decided prior to the passage of § 7-48a, and, therefore, those decisions do not provide helpful guidance in discerning the meaning and scope of § 7-48a. In the absence of such interpretive tools, we conclude that the plain language of § 7-48a does not unambiguously indicate whether the legislature intended § 7-48a to authorize the Superior Court to declare an intended parent who bears no biological relationship to a child to be a legal parent of that child absent adoption proceedings.
Moreover, the department's contention that the only reasonable interpretation of the plain language of § 7-48a is that only biological intended parents may gain legal parental status solely by virtue of being parties to a valid gestational agreement, runs afoul of a basic principle of statutory construction. We often have stated that "it is axiomatic that those who promulgate statutes . . . do not intend to promulgate statutes . . . that lead to absurd consequences or bizarre results." (Internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 710, 998 A.2d 1 (2010); see also Dias v. Grady, 292 Conn. 350, 361, 972 A.2d 715 (2009). Accordingly, "[w]e construe a statute in a manner that will not . . . lead to absurd results." (Internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 616, 881 A.2d 978 (2005). The department's contention that the legislature expressed an intent, via the plain language of § 7-48a, that only a biological intended parent may gain parental status absent adoption proceedings, when examined in relation to the artificial insemination statutes, leads to the not very remote possibility of a child who comes into the world with no parents—a parentless child. Specifically, General Statutes § 45a-775 provides: "An identified or anonymous donor of sperm or eggs used in A.I.D., or any person claiming by or through such donor, shall not have any right or interest in any
Section 7-48a initially was enacted by No. 01-163, § 28, of the 2001 Public Acts (P.A. 01-163), and, at the time of passage, provided merely: "On and after January 1, 2002, each birth certificate shall contain the name of the birth mother, except by the order of a court of competent jurisdiction." (Emphasis added.) The raised bill that preceded P.A. 01-163 had been much more detailed, and provided in relevant part: "(a) On receipt of a certified copy of an order of a court of competent jurisdiction approving a gestational agreement, the department shall prepare a new birth certificate for the child born of the agreement. The new birth certificate shall include all the information required
Section 7-48a was amended in 2004 to add language requiring the department to issue a replacement birth certificate in accordance with an order from a court of competent jurisdiction.
A subsequent exchange could be read more broadly. At one point during the discussion of the amendment, Representative Lenny T. Winkler remarked: "[F]rom what I understand it's been difficult for some individuals to adopt and they've been required to go to [P]robate [Court] and this would avoid that and make it easier, could you explain that all?" Id., at p. 4459. Representative Sherer responded: "That's correct. There's been the difficult situation where due to the birth being, the parents not being the birth parents the
With respect to whether this substantive change in the law was intended to include nonbiological intended parents, we recognize that the legislative history is inconclusive, but we already have rejected, on the basis of our plain language analysis, the department's contention that only biological intended parents may acquire legal parentage solely by virtue of a valid gestational agreement. On the basis of our analysis of both the text of the statute, as well as its legislative history, we conclude that the legislature intended § 7-48a to confer parental status on an intended parent who is a party to a valid gestational agreement irrespective of that intended parent's genetic relationship to the children. Such intended parents need not adopt the children in order to become legal parents. They acquire that status by operation of law, upon an order by a court of competent jurisdiction pursuant to § 7-48a.
Consistent with our conclusion that § 7-48a confers parental status on a nongenetic, intended parent who is a party to a valid gestational agreement, we also conclude that the trial court properly ordered the department to issue a replacement birth certificate listing Hargon as a parent of the children. This conclusion is also consistent with the principle that information on a birth certificate must be accurate. See General Statutes §§ 19a-40
The department relies on Doe v. Doe, supra, 244 Conn. at 403, 710 A.2d 1297, to
The department also contends that courts in other jurisdictions have concluded that the legislature is the appropriate body to devise new rules for the regulation of gestational agreements. See, e.g., In re C.K.G., 173 S.W.3d 714, 730 (Tenn.2005) (deciding maternity question presented by artificial insemination with donated egg narrowly in recognition that, due to "far-reaching, profoundly complex, and competing public policy considerations implicated by" use of assisted reproductive technology, legislature is appropriate body to craft "general rule to adjudicate all controversies" that arise from its use); Culliton v. Beth Israel Deaconess Medical Center, 435 Mass. 285, 293, 756 N.E.2d 1133 (2001) (noting that legislature had not yet enacted comprehensive statutory scheme addressing issues arising from use of assisted reproductive technology and stating that legislature "is the most suitable forum to deal with the questions involved in this case, and other questions as yet unlitigated, by providing a comprehensive set of laws that deal with the medical, legal, and ethical aspects of these practices").
We agree that the legislature is the appropriate body to craft specific rules and procedures governing gestational agreements. That precept does not conflict with our decision today, which interprets § 7-48a in accordance with well established rules of statutory construction. Our decision is grounded on and guided by the intent of the legislature. Moreover, because we agree with the department that the legislature is the appropriate body to establish specific standards, rules and procedures governing gestational agreements,
Indeed, this appeal highlights the fact that our existing statutes addressing parentage do not address the public policy concerns raised by modern assisted reproductive technology. The legislature itself has recognized that it has postponed confronting these issues. In 2007, the legislature amended §§ 45a-771a and 45a-775; see Public Acts 2007, No. 07-93, §§ 1 and 3; redefining artificial insemination to include the use of an egg donor and providing that egg donors, like sperm donors, have no parental rights. In discussing the amendment, Representative Arthur J. O'Neill observed that this change was "one small part of what once was a very large [b]ill that the [l]aw [r]evision [c]ommission worked on, probably six or seven years ago, in an effort to try to come up with some comprehensive legislation to deal with a number of issues that are created by the new technology of reproduction that has been developing over the last few years." 50 H.R. Proc., Pt. 14, 2007 Sess., p. 4438. He further observed that the inclusion of egg donors within the artificial insemination statutes was "actually one of the easier parts of this subject to deal with and it's something that's straightforward and understandable. But there are many other issues that we are probably going to have to confront.
"And I'm gathering, based on this [b]ill before us, that it's going to be in a piecemeal sort of way that we deal with all of these issues of technological innovation in the area of reproduction and legal issues that crop up that really need to be resolved so that the families are not left in a state of confusion as to what they should do." Id., at pp. 4438-39.
Representative O'Neill could not have phrased this issue more precisely—this area of law needs to be clarified so that families are not left in a state of confusion. Our existing statutory scheme only partially addresses these issues. Parentage, however, is not an issue that should be addressed in a "piecemeal" fashion. As we already have observed in this opinion, our existing statutes provide few answers and raise many questions. It is decidedly not the role of this court to make the public policy determinations necessary to establish the specific rules and procedures governing the validity of gestational agreements or set the standards for valid gestational agreements. The legislature will be required to grapple with numerous questions implicating significant public policy issues—that body, with the ability to hold public hearings and seek out expert assistance, is the appropriate one to make such public policy determinations.
We highlight some of the issues that remain unresolved in our current statutory scheme by looking to the laws of other jurisdictions that have grappled with these public policy issues. In jurisdictions that have addressed the issues raised by the use of assisted reproductive technology,
How a state defines parentage is merely the starting point. Additional issues that some states have addressed, for example, include whether to recognize compensated gestational agreements,
We emphasize that the legislature is the appropriate body to make the public policy determinations implicated by these issues. Because of the uncertainties created by the existing statutory scheme, we respectfully would suggest that the legislature consider doing so. Particularly important will be a determination of which types of gestational agreements are valid, as that determination will decide who may benefit from the streamlined process to parentage created by § 7-48a. As we have stated previously in this opinion, in the language of § 7-48a, the legislature already implicitly has recognized that at least some gestational agreements are valid. That general recognition of validity has little practical use, however, until the legislature clarifies specifically what requirements must be met in order for a gestational agreement to be valid. For today, we answer only the narrow question presented in this appeal: Upon a court order pursuant to § 7-48a, intended parents who are parties to a valid gestational agreement acquire parental status and are entitled to be named as parents on the replacement birth certificate, without respect to their biological relationship to the children.
The judgment is affirmed.
In this opinion ROGERS, C.J., and NORCOTT, KATZ and PALMER, Js., concurred.
ZARELLA, J., with whom VERTEFEUILLE, J., joins, concurring.
I agree with part I of the majority opinion addressing the jurisdictional claim of the defendant the department of public health (department). I also agree with the conclusion in part II affirming the trial court's order directing the department to issue a replacement birth certificate, pursuant to General Statutes § 7-48a, naming the plaintiff and intended parent, Shawn Hargon, as a parent of the
The majority concludes that the meaning of § 7-48a is ambiguous with respect to whether Hargon, who has no biological relationship to the children, may be named as a parent on the replacement birth certificate. The majority reaches this conclusion because there is no definition of the terms "birth mother" or "gestational agreement" in § 7-48a, and no language in any related statute indicating that a person identified as an intended parent in a gestational agreement with no biological ties to the unborn child may be named as a parent in a replacement birth certificate without first adopting the child. I disagree.
"The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual
Section 7-48a, concerning the filing of birth certificates and replacement birth certificates, provides: "On and after January 1, 2002, each birth certificate shall be filed with the name of the birth mother recorded. If the birth is subject to a gestational agreement, the Department of Public Health shall create a replacement certificate in accordance with an order from a court of competent jurisdiction not later than forty-five days after receipt of such order or forty-five days after the birth of the child, whichever is later. Such replacement certificate shall include all information required to be included in a certificate of birth of this state as of the date of the birth. When a certified copy of such certificate of birth is requested by an eligible party, as provided in section 7-51, a copy of the replacement certificate shall be provided. The department shall seal the original certificate of birth in accordance with the provisions of subsection (c) of section 19a-42. Immediately after a replacement certificate has been prepared, the department shall transmit an exact copy of such certificate to the registrar of vital statistics of the town of birth and to any other registrar as the department deems appropriate. The town shall proceed in accordance with the provisions of section 19a-42." (Emphasis added.)
The language of the statute is plain and unambiguous. The term "subject to" in § 7-48a is defined, inter alia, as "governed or affected by. . . ." Black's Law Dictionary (6th Ed. 1990). The statute thus must be construed to mean that a birth "subject to" a gestational agreement is governed by its provisions. It follows that when a gestational agreement provides in clear and unequivocal language that a carrier shall bear a child for persons identified as the child's intended parents, the department shall create a replacement birth certificate upon an order from a court of competent jurisdiction in accordance with the terms of the agreement, even if one of the intended parents is not biologically related to the child.
This conclusion is confirmed by a reading of General Statutes § 19a-42, to which § 7-48a refers and which the majority completely ignores. Section 19a-42, regarding the amendment of vital records, provides in relevant part: "(a) . . . Amendments [to birth certificates] related to parentage or gender change shall result in the creation of a replacement certificate that supersedes the original, and shall in no way reveal the original language changed by the amendment. . . .
"(c) . . . The original certificate in the case of parentage or gender change shall be physically or electronically sealed and kept in a confidential file by the department and the registrar of any town in which the birth was recorded, and may be unsealed for viewing or issuance only upon a written order of a court of competent jurisdiction. The amended certificate shall become the public record. . . ."
General Statutes § 7-36 defines the terms used in §§ 7-48a and 19a-42. Section 7-36(10) specifically defines "[a]mendment," in part, as meaning to "create a replacement certificate of birth for matters pertaining to parentage and gender change. . . ." Section 7-36(13) defines "[p]arentage" as "includ[ing] matters relating
Reading these statutes together, they clearly provide that an amendment to a birth certificate for a birth governed by a gestational agreement shall result in a replacement birth certificate that supersedes the original. There is no qualifying language in §§ 7-48a, 19a-42, 7-36(10) or (13), limiting the persons who may be named as parents in a replacement birth certificate to intended parents who are biologically related to the child. If the legislature had intended to impose such a restriction it easily could have done so. See, e.g., Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 729, 6 A.3d 763 (2010); see also Windels v. Environmental Protection Commission, 284 Conn. 268, 299, 933 A.2d 256 (2007) (legislature knows how to convey its intent expressly). There is also no language in any other related statute suggesting that a person named as an intended parent in a gestational agreement must be biologically related to the child in order to be named as a parent in a replacement birth certificate. "[W]e are not permitted to supply statutory language that the legislature may have chosen to omit." (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, supra, at 729, 6 A.3d 763; see also Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. at 108, 119, 830 A.2d 1121 (2003).
The majority's conclusion that § 7-48a is ambiguous because it fails to define birth mother or gestational agreement ignores or overlooks the principle of statutory interpretation that, "[w]hen a statute does not provide a definition, words and phrases in a particular statute are to be construed according to their common usage. . . . To ascertain that usage, we look to the dictionary definition of the term." (Internal quotation marks omitted.) Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 633, 6 A.3d 60 (2010); see also Picco v. Voluntown, 295 Conn. 141, 148, 989 A.2d 593 (2010); Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 449-50, 984 A.2d 748 (2010); Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 9, 976 A.2d 668 (2009). The majority also overlooks General Statutes § 1-1(a), which similarly provides that, "[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly."
Because the term gestational agreement is a technical term that describes a certain type of contract, we turn to Black's Law Dictionary for guidance. Black's Law Dictionary contains no definition of gestational agreement but defines a "surrogate-parenting agreement" as, inter alia, "[a] contract between a woman and typically an infertile couple under which the woman provides her uterus to carry an embryo throughout pregnancy; [especially], an agreement between a person (the intentional parent) and a woman (the surrogate mother) providing that the surrogate mother will (1) bear a child for the intentional parent, and (2) relinquish any and all rights to the child. . . ." Black's Law Dictionary (9th Ed. 2009). "Gestational surrogacy" is further defined as "[a] pregnancy in which one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child." Id. Black's Law Dictionary distinguishes "gestational surrogacy" from "traditional surrogacy," by defining the latter as "[a] pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, and carries
The agreement in the present case, which is variously described therein as the "agreement," "carrier agreement," "gestational surrogacy arrangement" and "gestational carrier agreement," fits precisely within this framework. The agreement identifies the plaintiff, Anthony Raftopol, as the natural father and Hargon, who is not biologically related to the children, as the "adopting parent,"
To the extent that the majority finds § 7-48a ambiguous and examines the legislative history, I disagree with its analysis. The majority's exclusive focus is on two earlier versions of the statute before the present language on gestational agreements was added in 2008. The majority thus fails to discuss the most relevant portion of the statute's legislative history. In addition, I disagree with the majority's conclusion that the only legislative intent that can be gleaned from the legislative history is that § 7-48a allows a biological parent who is not the birth parent to be declared the parent of the child and to be listed on the replacement birth certificate without the requirement of an adoption. In fact, I cannot divine how the majority reaches this conclusion, especially after conceding that there is evidence in the legislative history that supports the opposite conclusion.
The legislative history of § 7-48a can be understood only in conjunction with the legislative history of § 19a-42. Public Acts 2001, No. 01-163 (P.A. 01-163), proposed the enactment of a new section to chapter 7, concerning vital records, as well as major changes to the then existing § 19a-42 regarding the amendment of vital records. As originally proposed in Raised Bill No. 6569, the portion of the Public Act that ultimately became § 7-48a of the General Statutes, included the following language on gestational agreements: "On receipt of a certified copy of an order of a court of competent jurisdiction approving a gestational agreement, the department shall prepare a new birth certificate for the child born of the agreement. The new birth certificate shall include all the information required to be set forth in a certificate of birth of this state as of the date of birth, except that the intended parent or parents under this agreement shall be named as the parent or parents."
This explanation was instead contained in an amendment to § 19a-42 that was also included in P.A. 01-163. Proposed changes to § 19a-42, on vital records, in both the raised and substitute bills, provided in relevant part that "[o]nly the commissioner [of the department]
Thus, the exception in § 7-48a to the naming of the birth mother in a birth certificate was described in the amendments that same year to §§ 19a-42 and 7-36, which provided that a replacement birth certificate superseding the original shall be created when the birth certificate is amended pursuant to changes in parentage and gender, such as those arising from a gestational agreement. Accordingly, the majority's first mistake in interpreting the legislative history is its conclusion that the legislature omitted more specific language on gestational agreements in the original version of § 7-28a because it rejected the notion of parenthood created solely by intent or because it wanted the courts to decide what additional information should be placed on birth certificates. As has
I also disagree with the majority's conclusion that the legislative history of Public Acts 2004, No. 04-255, in which the legislature amended § 7-48a to include language on replacement birth certificates, is ambiguous. Section 7-48a was greatly expanded in 2004 to include the following provision on replacement birth certificates: "On and after January 1, 2002, each birth certificate shall contain the name of the birth mother, except by the order of a court of competent jurisdiction, and be filed with the name of the birth mother recorded. Not later than forty-five days after receipt of an order from a court of competent jurisdiction, the Department of Public Health shall create a replacement certificate in accordance with the court's order. Such replacement certificate shall include all information required to be included in a certificate of birth of this state as of the date of the birth. When a certified copy of such certificate of birth is requested by an eligible party, as provided in section 7-51, a copy of the replacement certificate shall be provided. The department shall seal the original certificate of birth in accordance with the provisions of subsection (c) of section 19a-42. Immediately after a replacement certificate has been prepared, the department shall transmit an exact copy of such certificate to the registrar of vital statistics of the town of birth and to any other registrar as the department deems appropriate. The town shall proceed in accordance with the provisions of section 19a-42." Public Act 04-255, § 28; see General Statutes (Rev. to 2005) § 7-48a.
This new language evidently was intended to correct whatever ambiguity had been created by the absence of language in the original statute regarding when to apply the exception to the rule that each birth certificate shall contain the name of the birth mother. By referring to the fact that such an exception would result in the creation of a replacement birth certificate and by expressly referring to § 19a-42 regarding the procedures to be followed in issuing such a certificate, the revised language made explicit the connection between §§ 7-28a and 19a-42 that had merely been implied when the legislature adopted § 7-28a and the amendment to § 19a-42 in 2001, although the amended language still did not make direct reference to gestational or other surrogacy agreements.
Representative Donald B. Sherer, who introduced the amendment to his fellow House members, indicated his understanding of the substantive connection that the legislature had established in 2001 between §§ 7-28a and 19a-42 when he explained that, "[a] number of years ago . . . this legislature changed the birth certificate registration law to permit a court of [competent jurisdiction] being the Superior Court to find parentage in accordance with the biological relationship to a child rather
"And over the course of the years there's been some confusion as to how to effectuate the birth certificate. So the language in this amendment pretty much clarifies what to do. It says that after the court [orders] parentage, that within [forty-five] days after the presentation of the court order the [department] will issue a replacement birth certificate and the original birth certificate with all the required statistical information would remain confidential." 47 H.R. Proc., Pt. 14, 2004 Sess., pp. 4456-57. In response to a subsequent question as to whether the new provision would make it easier for some individuals to adopt without going to Probate Court, Representative Sherer added: "There's been a difficult situation where due to the. . . parents not being the birth parents the only way to obtain a new birth certificate would be to go to [P]robate [C]ourt and basically adopt their own child, which no one really thinks is the right thing to do." Id., at p. 4459.
Representative Sherer's comments, when read in the proper context, are not ambiguous. In his first comment, in which he referred to previous changes in the law on vital records to permit a finding of parentage on the basis of the biological relationship of a mother who was not the birth mother, he clearly was referring to the enactment of § 7-48a, and to changes in §§ 19a-42 and 7-36 enacted in 2001, allowing the amendment of birth certificates to reflect changes in parentage or gender such that an egg donor who was not the birth mother in a surrogacy arrangement could be named in a replacement birth certificate as the parent of the child. Similarly, Representative Sherer was clearly referring in his second comment to changes in the relevant statutes allowing any parent in a surrogacy arrangement who was not the birth parent to obtain a replacement birth certificate without going to Probate Court to adopt the child. By implication, this would include intended parents identified in gestational agreements who have no biological relationship to the child. Although there is nothing in Representative Sherer's comments relating directly to gestational agreements, his comments do not suggest that a person identified as an intended parent in a gestational agreement may not be named on the replacement birth certificate unless biologically related to the child. Accordingly, I would disagree with the majority that Representative Sherer's comments are ambiguous, except to the extent that they imply that a person named as a parent in a gestational agreement who has a biological relationship to the child also may be named as a parent on the replacement birth certificate.
In addition, the majority inexplicably fails to examine the most important part of the legislative history, namely, the 2008 amendment in which the legislature added the language on gestational agreements to the statute. As previously discussed, prior to 2008, § 7-48a contained no language referring to gestational agreements. In 2008, however, language was proposed in Public Acts 2008, No. 08-184, "clarifying" that § 7-48a was intended to apply to gestational agreements. Notably, there was no discussion of this amendment during debate in the House or Senate, most likely because it was part of a much larger bill on a variety of other matters relating to public health. J. Robert Galvin, however, the commissioner of the department (commissioner), testified before the joint standing committee on public health on March 3, 2008, that "[t]he revised language [of the statute] makes clear that . . . § 7-48a pertains to the births that are subject to a gestational agreement. Without this
The office of fiscal analysis and the office of legislative research provided the legislature with reports on the proposed revision consistent with the commissioner's testimony. In its report, the office of fiscal analysis stated that the amendment "clarifies law regarding the issuance of replacement birth certificates for births subject to a gestational agreement. This results in no fiscal impact." Office of Fiscal Analysis, Connecticut General Assembly, HB-5701 An Act Concerning Revisions to Statutes Pertaining to the Department of Public Health (2008), § 1. The office of legislative research bill analysis similarly explained in relevant part that "[t]he bill appears to limit the replacement certificate requirement to births that are subject to a gestational agreement." Office of Legislative Research, Connecticut General Assembly, Bill Analysis HB 5701 An Act Concerning Revisions to Statutes Pertaining to the Department of Public Health (2008) § 1. Even more specific was the summary of 2008 Public Acts published by the office of legislative research and made available to the public
Accordingly, the only conclusion that can be drawn from an examination of this legislative history is that a person named as an intended parent in a valid gestational agreement may also be named as a parent in a replacement birth certificate, regardless of whether that person has biological ties to the child. Trial courts that have considered the legislative history of the 2008 amendment have reached the same conclusion. See, e.g., Griffiths v. Taylor, Superior Court, judicial district of Waterbury, Docket No. FA 08-4015629, 2008 WL 2745130 (June 13, 2008) (concluding that "the legislature contemplated that a [judge of the] Superior Court would have the authority, under § 7-48a, to enter a judgment on the validity of a gestational agreement and that where there is a valid agreement, the court may then order the [department] to issue a replacement birth certificate with the names of the intended parents on it"); see also Cassidy v. Williams, Superior Court, judicial district of Litchfield, Docket No. FA 08-4006951-S, 2008 WL 2930591 (July 9, 2008).
When the 2008 amendment is examined in the context of the entire legislative history of § 7-48a, it becomes easier to understand why the current revision of the statute is completely consistent with the language on gestational agreements that was omitted in 2001, with each subsequent version of the statute after that time, and with the language in § 19a-42, to which § 7-48a has referred since 2004. It is also clear that the legislature has never contemplated a statutory limitation, such as the requirement of a biological relationship to the child, that would in any way restrict the category of persons named in a valid gestational agreement who also may be named in a replacement birth certificate under § 7-48a. Consequently, even if I agreed with the majority that it is necessary to examine the legislative history because there are ambiguities in the statute—which I do not—such an examination supports the conclusion that the legislature intended replacement birth certificates issued pursuant to valid gestational agreements to contain the names of the intended parents, regardless of whether they have a biological relationship to the child.
The majority attempts to resolve the perceived ambiguity in § 7-48a and the legislative history by turning to the principle of statutory interpretation that "we construe a statute in a manner that will not . . . lead to absurd results." (Internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 616, 881 A.2d 978 (2005). The majority agrees with the department's conclusion that a reading that construes § 7-48a to mean "that only a biological intended parent may gain parental status absent adoption proceedings, when examined in relation to the artificial insemination statutes, leads to the not very remote possibility [and absurd result] of a child who comes into the world with no parents—a parentless child." Although I agree that we could apply the principle that we construe a statute to avoid absurd results in affirming the trial court's judgment, the majority applies the principle in complete disregard of our well established law on statutory interpretation, and, in so doing, significantly weakens the plain meaning rule.
From this it is evident that the principle that a statute should not be construed in a manner that would lead to an absurd or bizarre result leaves no room for an examination of the legislative history when the court concludes that there is only one reasonable or plausible interpretation of the statute, namely, the one that the court is adopting. In other words, it is necessary and permissible to examine the legislative history for the purpose of discerning the legislative intent only when there is more than one plausible interpretation of the statute or when the only seemingly plausible interpretation would lead to an absurd result. See Ziotas v. Reardon Law Firm, P.C., supra, 296 Conn. at 587, 997 A.2d 453. Accordingly, when the majority consults the legislative history after determining that construing § 7-48a to preclude intended parents with no biological relationship to the child from being named on the replacement birth certificate would lead to an absurd result, it disregards the plain meaning rule and the analytical procedure that is traditionally invoked when the court concludes that interpreting a statute in any other manner would lead to an absurd result. The majority thus unwisely injects inconsistent reasoning and uncertainty into our precedent concerning statutory interpretation.
The majority justifies its approach, which it fails to bolster with any precedential support, by stating that "[t]he mere fact . . . that the department's proposed interpretation of § 7-48a leads to an absurd result does not necessarily lead to the conclusion, based on the plain language of the statute, that § 7-48a confers parental status on Hargon by virtue of the gestational agreement" because "many ambiguities" remain. The majority describes these ambiguities as "the nature and scope of `an order from a court of competent jurisdiction,' the types of gestational agreements that would give rise to such an order, whatever it may be, [and] who may be an intended parent, just to name a few." I find this rationale inadequate for two reasons. First, it embodies the internal contradiction that a statute may remain ambiguous with respect to the question before the court, even though there can be only one reasonable interpretation of the statutory language in the factual context presented. Second, the so-called "ambiguities" identified by the majority have absolutely no relevance to the issue before this court. It is abundantly clear that the issue to be decided in this case does not involve the "nature and scope" of the trial court's order, whether the gestational agreement into which the parties entered is the type of agreement that
My final comment pertains to the last part of the majority opinion, which provides the legislature with a detailed road map indicating how the law on gestational agreements should be clarified. The majority makes much of the fact that "the legislature is the appropriate body to craft specific rules and procedures governing gestational agreements," and that it is not the role of the courts to advise the legislature. The majority nonetheless states that "this appeal highlights the fact that our existing statutes addressing parentage do not address the public policy concerns raised by modern assisted reproductive technology." After observing that "[i]t is decidedly not the role of this court to make the public policy determinations necessary to establish the specific rules and procedures governing the validity of gestational agreements or set the standards for valid gestational agreements," the majority proceeds to take this opportunity to "highlight some of the issues [involving key public policy determinations] that remain unresolved in our current statutory scheme. . . ." The majority then provides approximately four pages of citations to statutes enacted by our sister states and to various provisions in the Uniform Parentage Act of 2000; see Unif. Parentage Act §§ 801 through 809, 9B U.L.A. 299-376 (2001); concerning issues relating to gestational agreements for the purpose of instructing the legislature as to matters that require clarification. Although I believe it is appropriate for this court to convey to the legislature that additional guidance in this area of the law would be helpful, I am unaware of another opinion of this court that goes so far in attempting to construct a legislative agenda. Accordingly, I view this extraordinary step as excessive.
For the foregoing reasons, I concur only in the result reached by the majority in part II of its opinion.
The phrase "[i]f the birth is subject to a gestational agreement" was added to § 7-48a, effective October 1, 2008, by No. 08-184, § 1, of the 2008 Public Acts (P.A. 08-184). Although the trial court in the present case rendered judgment on July 24, 2008, prior to the effective date of the 2008 amendment, the testimony of J. Robert Galvin, the commissioner of public health, before the public health committee on P.A. 08-184 makes clear that the phrase was added as a "clarification" that § 7-48a pertains to "births that are subject to a gestational agreement. Without this revision it is difficult to interpret [the] statute." Conn. Joint Standing Committee Hearings, Public Health, Pt. 1, 2008 Sess., p. 545. The department concedes on appeal that P.A. 08-184 merely clarified that § 7-48a applies to births that are subject to a gestational agreement.
"We presume that, in enacting a statute, the legislature intended a change in existing law. . . . This presumption, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case. An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act. . . . Furthermore, an amendment that is intended to clarify the intent of an earlier act necessarily has retroactive effect." (Internal quotation marks omitted.) Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 172-74, 927 A.2d 793 (2007). Because the 2008 amendment was merely a clarification of existing law, it represents the meaning of the original act. Accordingly, in our interpretation of § 7-48a, we rely on the language that became effective as of October 1, 2008.
Finally, General Statutes § 45a-776 considers the domicile of a child born as a result of the use of A.I.D. and provides that: "(a) Any child conceived as a result of A.I.D. performed in Connecticut and born in another jurisdiction shall have his status determined by the law of the other jurisdiction unless the mother of the child is domiciled in Connecticut at the time of the birth of the child.
"(b) If a child is conceived by A.I.D. in another jurisdiction but is born in Connecticut to a husband and wife who, at the time of conception, were not domiciliaries of Connecticut, but are domiciliaries at the time of the birth of the child, the child shall have the same status as is provided in section 45a-774, even if the provisions of subsection (b) of section 45a-772 and section 45a-773 may not have been complied with." Section 45a-776 does not address any issues that may arise with respect to the domicile of a gestational carrier. The consistent presumption within the entire statutory scheme is that any of the technologies included within the meaning of "`[a]rtificial insemination'" will result in the wife being the birth mother.
"(b) The judges of the Superior Court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section."
Section 7-51a, which governs access to vital records by genealogical societies, provides in relevant part: "(a) . . . During all normal business hours, members of genealogical societies incorporated or authorized by the Secretary of the State to do business or conduct affairs in this state shall (1) have full access to all vital records in the custody of any registrar of vital statistics, including certificates, ledgers, record books, card files, indexes and database printouts, except for those records containing Social Security numbers protected pursuant to 42 USC 405(c)(2)(C), and confidential files on adoptions, gender change, gestational agreements and paternity. . . ." (Emphasis added.)
"On and after January 1, 2002, each birth certificate shall contain the name of the birth mother, except by the order of a court of competent jurisdiction, and be filed with the name of the birth mother recorded. Not later than forty-five days after receipt of an order from a court of competent jurisdiction, the Department of Public Health shall create a replacement certificate in accordance with the court's order. . . ." (Emphasis in original.)
Although Arkansas, which appears to recognize only traditional surrogacies, does not require that intended parents be married, its statutes establish a presumption that a child born by means of artificial insemination to a surrogate mother who is married is the child of the biological father and the "woman intended to be the mother if the biological father is married. . . ." (Emphasis added.) Ark.Code Ann. § 9-10-201(b)(1) (2009). By contrast, if the biological father is not married, the child is the child of the biological father only.
New Hampshire requires judicial preauthorization of a gestational agreement, prior to the medical procedure to impregnate the gestational carrier. N.H.Rev.Stat. Ann. § 168-B:16 (I)(b) (2002). At the hearing, the court must make findings that all parties to the gestational agreement have given their informed consent and that the agreement contains no unconscionable terms. N.H.Rev. Stat. Ann. § 168-B:23 (III)(a) and (b) (2002). The contract must be signed by the gestational carrier and her spouse if she is married. N.H.Rev.Stat. Ann. § 168-B:25 (2002). In addition, New Hampshire requires that a gestational agreement provide that the gestational carrier has the right to keep the child if, within seventy-two hours after the birth of the child, the carrier executes a signed statement of her intent to keep the child and delivers the writing to the intended parents and the attending physician or the hospital medical director or designee. N.H.Rev.Stat. Ann. § 168-B:25 (IV) (2002).
Similar to New Hampshire, Virginia requires that a petition for court approval of a surrogacy contract be filed prior to the performance of assisted conception. One of the required findings by the court is that the parties have voluntarily entered into the gestational agreement and understand its terms. Va.Code Ann. § 20-160(B)(4) (2008).
In addition to requiring that at least one intended parent must contribute a gamete, New Hampshire bars the use of a third party egg donor-the egg must either come from the intended mother or the gestational carrier. N.H.Rev.Stat. Ann. § 168-B:17 (III) and (IV) (2002).
Texas does not appear to require that one of the intended parents contribute genetic material, and allows a donor egg to be used, but prohibits the use of the gestational carrier's eggs in the assisted reproduction procedure. Tex. Fam.Code Ann. § 160.754(c) (Vernon 2008).
Nevada requires that both intended parents must contribute the gametes used in the assisted reproduction procedure. Nev.Rev.Stat. § 126.045(4)(a) (2009).
"(b) Immediately after a new certificate of birth has been prepared, an exact copy of the certificate, together with a copy of the order of the court approving a gestational agreement, shall be electronically or manually transmitted by the department to the registrar of vital statistics of each town in this state in which the birth of the person is recorded. The new birth certificate, the original certificate of birth on file and the copy of the order of the court shall be filed and indexed pursuant to such regulations as the commissioner shall adopt, in accordance with chapter 54 of the general statutes, to carry out the provisions of this section and to prevent access to such records of birth and court order, except as provided in this section. Any person, except the intended parent or child born of the agreement, who discloses any information contained in such records, except as provided in this section, shall be fined not more than five hundred dollars or imprisoned not more than six months, or both.
"(c) When a certified copy of the birth certificate of a child born of a gestational agreement is requested by a person authorized to receive such copy pursuant to section 7-51 of the general statutes, as amended by this act, a copy of the new certificate of birth, as prepared by the department in accordance with the applicable provisions of section 19a-42 of the general statutes, as amended by this act, shall be provided. Access to or issuance of a certified copy of the original birth certificate to any person, including the intended parent or parents of the child or the child born of the gestational agreement, if over eighteen years of age, shall be permitted only upon a written order signed by a judge of the probate court for the district in which the gestational agreement was approved, or another court of competent jurisdiction. The original certificate so issued shall be marked with a notation by the issuer that the original certificate of birth has been superseded by a replacement certificate of birth as on file." Raised Bill No. 6569, January 2001 Sess., § 27(a).