In recent years, our conception of the “family” has broadened to include a wider variety of experiences. This continually expanding notion of the family has been ushered in by evolving values as well as scientific advances. However, the law can be slow to incorporate societal advances and often only does so incrementally. Nowhere is this truer than when the law touches matters of family. In the case of In re M.M.M., 428 S.W.3d 389, 398 (Tex. App.—Houston [14th Dist.] 2014, pet. denied), the courts were confronted with questions that seem poised to push the boundaries of the law. Continue below to read our analysis of that case’s issues and possible future changes to the law.
Introduction to the Issue: Genetics and Gestation
At the heart of In re M.M.M. was the distinction between genetics and gestation. A child is genetically related to a parent if the child shares the parent’s genetic material, meaning the DNA of the parent is used in the conception of the child from either an egg or a sperm cell. By contrast, gestation refers to the period between conception and birth when the baby grows inside the mother’s womb.
In a “traditional” scenario, the mother’s DNA (the egg) is used to conceive the child and the mother also carries the fetus. But, increasingly, this is not always the case. For example, a surrogate can gestate a fetus without her DNA being used to conceive the child.
Recently, Texas law has been updated to address some of the gray areas surrounding genetics and gestation. For instance, one section defines “gestational mother[s]” as those women who conceive children via assisted reproduction with a donor egg and have entered into a gestational agreement with “intended parents.” Tex. Fam. Code §§ 160.751–.763. In a gestational agreement, a woman agrees to gestate (or carry) a fetus that is genetically related to the intended parents. Due to the significant legal consequences that flow from gestational agreements, these agreements must meet strict requirements and be approved by a court. If the gestational agreement is approved, the gestational mother will lack parental rights over the child(ren) she carries. Tex. Fam. Code § 160.753(a).
The Case at Hand: In re M.M.M – Background
Turning to the case at the center of this article – let’s first review some background. In 2011, Marvin McMurrey and his partner decided to become parents, however they were unable to conceive a child themselves. Because of this, McMurrey approached his long-time friend, Cindy Close, to discuss assisted reproduction. McMurrey and Close agreed that he would provide the sperm, that the egg would come from an anonymous donor, and that Close would gestate/carry the fetus. However, the involved parties never recorded their intentions in a written document. (As a side note, Texas law states that anonymous egg donors do not have parental rights).
After Close gave birth to twins, McMurrey took possession of the children and sought a declaratory judgment from the court that he was the children’s father and that Close had no parental relationship to or rights regarding the children. (A declaratory judgment defines/declares the rights of the parties with regards to the specific issue raised).
The parties agreed that they had not entered into a valid gestational agreement. As a result, the trial court entered a split summary judgment stating that (1) McMurrey was the children’s father, and (2) Close was the children’s mother. (A summary judgment is an order from the court during a case’s early stages in which the court rules on some or all of the issues without the need to engage in a full trial). The trial court then set a hearing to determine conservatorship (the Texas term for custody) and child support. Both parties appealed the decision.
In re M.M.M. Legal Analysis and Considerations
On appeal, Close argued that the law was clear: absent a valid gestation agreement, her gestation/carrying of the twins established the mother-child relationship. Close relied on the law that governs the mother-child relationship in Texas. This law provides that the mother-child relationship “is established” when, among other instances, a woman gives birth to the child. Tex. Fam. Code § 160.201(a).
McMurrey, on the other hand, argued that the law cited by Close created only a rebuttable presumption of motherhood. To support his position, McMurrey pointed to the state law which defines the father-child relationship. Like the mother-child relationship statute, the father-child relationship statute describes different methods of establishing the father-child relationship, one of which is “an unrebutted presumption of the man’s paternity of the child.” Tex. Fam. Code § 160.201(b)(1). (Other sections of Texas law provide that paternity can be established genetically).
McMurrey argued that another statute, Texas Family Code § 160.106, suggested that the rebuttable presumption found in the father-child relationship statute also applied to the mother-child relationship law. This subsection states: “The provisions of this chapter relating to the determination of paternity apply to a determination of maternity.” Tex. Fam. Code § 160.106. According to McMurrey’s argument, maternity (acquired by gestation) can be rebutted by genetic testing.
The appellate court flatly rejected McMurrey’s argument. In its decision, the court applied a narrow reading of the law and noted that the language of § 160.106 only applied to the determination of maternity, which was distinct from the establishment language of Code § 160.201, on which McMurrey relied. Therefore, one could not infer a rebuttable presumption where the code spoke of the establishment of a relationship.
A Coming Constitutional Contest?
Notwithstanding his rebuttable presumption argument, McMurrey also raised a constitutional argument. McMurrey argued that if there was, in fact, no inferred rebuttable presumption for maternity (by gestation), then the law effectively discriminated on the basis of sex— in violation of the Texas Constitution. The Equal Rights Amendment of the Texas Constitution provides that equality under the law cannot be denied or abridged for several reasons, including sex. Tex. Const. art. I, § 3a. McMurrey also argued that if the law conclusively equated maternity with gestation, and paternity with genetics, then the law denies equality on the basis of sex.
The appellate court chose not to address the merits of McMurrey’s constitutional argument. The court avoided this by pointing out a procedural error in McMurrey’s strategy, which was his failure to raise the constitutional issue at the lower court level. (Generally, court procedure requires the parties to bring forward all issues at the start of the case, otherwise, such issues are not “preserved.”)
An increasing number of couples turn to surrogates, so it seems likely that this issue will be timely raised in another case. When that happens, check back to the Family Law Monitor for an in-depth analysis.
If you have questions about or parental rights, please contact Kirker Davis today for more information.