A child custody battle involving a pair of twins born in July to a 47-year-old Houston woman could make Texas law in situations in which women give birth to children conceived with donor eggs.
On Nov. 8, in two separate orders on motions for summary judgment, 247th District Judge Bonnie Crane Hellums found that Cindy Close is the mother of the boy/girl twins as a matter of law, and found no evidence to support Marvin McMurrey III’s claim that Close was a “surrogate or gestational carrier” of the twins. Hellums also found that McMurrey is the children’s legal father.
However, those findings are not the end of the heated custody dispute over the three-month-old twins. On Nov. 26, Hellums will hold a hearing on custody and child support issues related to McKenna Madeleine McMurrey and Simon Henderson McMurrey.
Grady Reiff, an attorney for Close, says that if McMurrey appeals Hellums’ decision that Close is mother of the children, it could make law. “It would definitely change the law because any woman married or unmarried who uses donor eggs would have to have their maternity adjudicated. That would be a fundamental shift,” says Reiff, an associate with Fullenweider Wilhite in Houston.
Ellen Yarrell, a solo practitioner in Houston who represents McMurrey, declines comment.
“We’ve tried to keep the children out of the media,” she says.
The custody of the children has been at issue since shortly after their birth, when McMurrey filed a suit in the 247th District Court seeking a declaratory judgment to establish that he is the biological father of the children and to establish there is no parent/child relationship between Close and the children on the ground she was a surrogate and is not genetically related to the children.
He alleged Close does not have standing to pursue any rights to the children.
In his second amended petition, filed on Oct. 15, McMurrey asked Hellums to declare parentage of the children under Texas Family Code Chapter 160. He alleged in the petition that Chapter 160 “merely creates a rebuttable presumption of parentage when a woman gives birth to a child” and an exception is “carved out” when a woman has a non-biological child under a gestational agreement. He alleged that because Close is not married to him, she is “not a presumed mother.” However, Hellums ruled that Close is the mother.
Close and McMurrey dispute whether Close was a surrogate.
In an unsworn declaration on Oct. 28, Close writes she and McMurrey participated in in-vitro fertilization together in an attempt to become co-parents. She writes that she never signed a surrogacy agreement.
In an affidavit on Oct. 15, McMurrey writes that Close “begged” him to be a surrogate for the children.
Diana S. Friedman, of Diana S. Friedman PC of Dallas and chair of the State Bar of Texas Family Law Section, says surrogacy laws are clear, but she notes that if people don’t follow the laws, “it gets into the whole messy area.”
Jimmy Vaught, of Vaught Law Firm in Austin, agrees that without a gestational agreement, “it moves from clearly defined to something with shades of gray.”
“I’m kind of looking at these kinds of questions: Obviously, were they married? Were they a couple? Had they been a couple? What precipitated her getting artificially inseminated and how that all kind of happened? To me, I would look at the absence of a gestational agreement,” Vaught says.
In her fourth amended counterpetition, filed on Nov. 2, Close brings breach of fiduciary duty, actual fraud, constructive fraud, intentional infliction of emotional distress and malicious civil prosecution causes of action against McMurrey, and brings a civil conspiracy action against McMurrey and Phong Nguyen, a friend of McMurrey’s. She seeks unspecified damages, and, among many things, an order recognizing that she is sole managing conservator of the children.
Close alleges in the petition that McMurrey “induced” her to “have two embryos, created from Marvin and an anonymous donor’s eggs, implanted in her uterus under an informal and mutual agreement that the parties would raise any resulting child(ren) as co-parents,” but she alleges McMurrey breached that relationship by “refuting” the agreement.
Close alleges in a motion for summary judgment filed on Oct. 20 that she did not find out until after the babies were born that McMurrey and Phong were partners, and they alleged that she had made an oral agreement with them to be a gestational mother. She alleges she never entered into an oral or written gestational or surrogacy agreement.
In an answer filed on Nov. 16, McMurrey generally denies the allegations in the counterpetition.
Stewart Gagnon, a partner in Fulbright & Jaworski in Houston, who represents Phong, declines comment.
On Nov. 26, Hellums also will consider a motion filed by McMurrey to sever the declaratory judgment from custody and child support matters and tort claims Close lodged against him so he can appeal it.
“It would be prejudicial and cause undo hardship, expense and delay to judicial efficiency and to all parties to require them to participate in a trial of the suit affecting the parent child relationship and tort claims joined under this cause number prior to final resolution from the appellate courts on the issues of parentage and standing,” McMurrey alleges in his motion to sever.
Reiff says Close opposes the severance.
Guardian ad litem Bruce Steffler, a solo practitioner in Houston, did not return a telephone message.