Last Thursday, the Law Court decided an important family law case in which we filed an amicus brief on behalf of various family law practitioners.  Robert Nolan et al. v. Kristen LaBree, 2012 ME 61

To see our amicus brief, here's the link.  [Download Amici Brief of Concerned Maine Attorneys]  (This is another appeal in which the SJC invited amici briefs and received several, so I hope this encourages the SJC to continue the practice of asking for such briefs.)

In this decison, I believe the SJC (opinion by Justice Gorman) got it exactly right, in both what it did and did not do.

First, the facts – a husband and wife used a gestational carrier, using the husband's sperm and the wife's egg.  The carrier gave birth and was initially listed as the mother on the child's birth certificate.  Because the carrier was married, her husband also by law was deemed the presumptive father.  So everyone trotted into district court to fix the birth certificate and make clear that the intended and genetic parents are the legal parents of the child.  There's no dispute among them that this should be so. 

The district court, however, interpreted the relevant statute, 19-A M.R.S. § 1553, to let it decide only paternity, not maternity.  Based on the evidence, the district court concluded that the intended, genetic father is in fact the father; declared the intended mother a de facto parent; and for some reason that I didn't quite follow, didn't eliminate the carrier's husband as a parent.

This means the child ended up with four legal parents – the intended, genetic parents, the carrier and her husband.  

So everyone keeps trotting, up to the Law Court, to fix this mess.  The SJC held, consistent with jurisdictions elsewhere (see our amicus brief) that Maine's statute, which references "parentage," gives the district court jurisdiction to declare both paternity and maternity.  The Court also held:  "In the context of an undisputed case like this one, when individuals—here, the genetic parents—seek a judgment declaring their legal parentage, and the other parties—the gestational carrier and her husband—have specifically asserted that they do not wish to be recognized as the child’s parents, the court is authorized to determine that the individuals are the parents of the child and thereby that the gestational carrier and her husband are not the parents of the child. There is no need for additional proceedings."

In sum, under the facts presented, the SJC fixed the problem and held that the intended, genetic parents are the legal parents of the child, and the carrier and her husband are not.

This decision makes eminent sense.  There was no disagreement here; and the parents were both intended and genetic.  The Court interpreted the law to produce a logical and fair result.  

Equally importantly, the SJC didn't go any further.  This was not a contested case.  The SJC did its best to obtain a full picture by asking for amici briefs, and all those briefs unsurprisingly supported this outcome.  In the absence of an adversarial presentation, the SJC was rightfully careful not to go further than it needed in order to bring rationality to the system and resolve the specific matter before it.  If you attended or heard the oral argument (and if you are a family law practitioner, it would have behooved you to do so), the Court asked many insightful questions about the broader issues, e.g. what kind of proof should ordinarily be presented?  what happens if there's a contest?  This is an area of the law that is going to need development, and the Court was sensitive to this fact.

I learn from every experience I have before a court, and my general takeaway here is consistent with a topic on which I've been blogging repeatedly recently - the importance to appellate courts to anticipate  the consequences of their decisions.   To write a good brief, especially in a novel case like this with no adversary, you really need to try to get into the head of the decision-maker and think like a judge.  What will they be concerned about in making a decision like this?  Always try to answer that question.

Here, it was important from the litigants' and amici's perspective, I think, to obtain holdings that the district court had jurisdiction, and that the genetic, intended parents are the legal parents.  This was not only needed for the parties before the court, but to give some clear direction to the district courts in future, similar situations.

But even when not arguing anything beyond that — because the court doesn't need to go any further –it's still a good idea to provide context, to give the court perspective, and confidence that it's not going off the rails on the first step of its journey down a road of newly developing law. 

So, for example, in our amici brief, we tried to give the SJC an overview of what courts were doing elsewhere on this general topic.  It would also make sense to anticipate the court's concerns about where their decision will land in the broader context of decisions about the legal implications of using gestational carriers and surrogacy.

So now in drafting briefs and thinking about appeals, in addition to focusing on the specifics of my case, I'm also trying to take the additional step of consciously thinking about where the decision I want will fit in that general area of the law.  How does it comport with precedent and fit into the proper development of the law in that area?             

Here, the SJC took an important first step in placing the development of the gestational carrier/surrogacy law on a path with solid footing.