Birth Mother Was Mere Surrogate, Says Gay Father

Posted October 4, 2012 in Your Family & The Law by


A showdown between former friends who became parents together has Texas family lawyers riveted over what is turning into a messy child custody battle that could leave their twin children motherless.

Cindy Close and Marvin McMurrey, longtime friends, wanted to be parents but didn’t want to marry, according to the Houston Chronicle. They decided to use in vitro fertilization, and an egg donor was set up. Close, who is in her late 40s, gave birth to twins in July.

While there was no written agreement between the two, the understanding had been that Close would raise the kids and McMurrey would support them as a father figure, according to the Chronicle. But after they were born, McMurrey threw Close for a loop: He sued to demand custody, saying she was a mere surrogate, and revealed that he was gay.


Twins Living with Gay Father’s Partner

The twins, who were born prematurely, were sent from the hospital to McMurrey’s partner’s home in what McMurrey convinced a judge is a “temporary” fix. Close is only allowed to see them on short, camera-monitored visits. A page set up on Facebook by her friends to “Give Cindy Back Her Babies” has attracted almost 1,000 “likes.”

Now a family law court will determine the fate of the twins — and it promises to be a real legal bear. McMurrey claims the deal was for surrogacy; Close says they were supposed to be co-parents. Since there was no written agreement between them, Judge Bonnie Crane Hellums will have to sort out the facts of the case and award custody to the proper party.

James W. Paulsen

“Mr. McMurrey and Ms. Close surely had some sort of a deal,” observes Professor James W. Paulsen, a family law expert at South Texas College of Law in Houston. “There’s no way a woman would agree to carry someone’s baby for nine months without some clear understanding of what was going on. 

“These two people certainly didn’t follow the Texas surrogacy statute,” Paulsen says. “The agreement isn’t in writing, Mr. McMurrey isn’t married, and Ms. Close hasn’t had a prior successful pregnancy” — all of which would be required for a proper surrogacy to have taken place. 

McMurrey could convince the judge that there are other ways to establish surrogacy, though.

“Perhaps two people can make their own deal and a court will enforce it,” Paulsen explains. “There are interesting legal arguments to be made on both sides, and the judge hasn’t given any idea what she thinks.”

A hearing on Sept. 24 resulted in Judge Hullums taking all of this under advisement.

And even though McMurrey currently has custody — or sort of does — Close is still the legal mother. “Once the judge gets the law untangled and looks at the deal these two people had, Ms. Close stands a good chance of winning,” Paulsen predicts. “At least if the judge believes her side of things.”


“Legal Shenanigans”

But to make the case even more complicated, it’s possible that McMurrey is pulling some fast — or rather, slow — legal maneuvers in the hopes of dragging the fight out so long that Close runs out of money and gives up, says Paulsen. McMurrey filed a declaratory judgment action instead of a Texas Family Code “parentage adjudication proceeding,” which is what you’d ordinarily expect in this general sort of case, he says.

“I’m not sure what his lawyer is thinking,” Paulsen continues. “But it looks to me like a lot of smoke and mirrors that just will make everyone start over with the right kind of lawsuit months down the road. It’s possible that dragging things out is exactly what the father has in mind.

“If Mr. McMurrey’s partner can hold on to the children for six months while things are tied up in court, under Texas law he can ask for custody on his own, even though he has no biological ties to the children,” Paulsen says. “By then, the children may have bonded with him more than with their birth mother.”

In that case, the judge might have to leave the children with McMurrey’s partner for their own good, he adds, “even if the children only got where they are because of legal shenanigans.”

Who do you think should get custody? Share your opinion below.

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