On September 30, the Texas Supreme Court denied review in a case brought by the nonbiological father of a child born using his ex-partner's sperm to a California surrogate mother. The couple, Jerry Berwick and Richard Wagner, lived in Texas, and had a child in December 2005 pursuant to a gestational surrogacy contract in California. Berwick is the biological father. Pursuant to agreements filed in the California court by the two men, the surrogate, and her husband, the California court issued a pre-birth parentage judgment naming the two men the child's legal parents. The order was stayed until the child's birth, as is customary with a pre-birth order. Upon the child's birth, a birth certificate was issued naming both men as parents (although, oddly, Wagner was listed in the space denominated "mother.")
The couple raised the child as two parents in Texas until 2008 when Berwick ended the relationship. Ever since, he has been arguing that he is the child's only parent. And, as we have seen too often before, he is represented by the anti-gay Alliance Defense Fund (ADF).
Wagner, represented by Ken Upton in the south central office of Lambda Legal, filed to register the California judgment in Texas pursuant to a statute that exists in every state. Those statutes, part of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), mandate that every state register child custody judgments from other states and give them Full Faith and Credit. The ADF lawyers argued that the parentage judgment did not determine "child custody" and therefore did not fall under the statute. In a decision last February, the Texas Court of Appeals ruled in Wagner's favor. Because the California judgment established that the birth mother and her husband were not the child's legal parents, it did determine that Berwick and Wagner would have custody of the child and the "presumed" parents (the woman who gives birth and her husband) would not. It is that ruling which the Texas Supreme Court declined to review two weeks ago. According to the Texas Supreme Court website, Berwick can still file a motion for rehearing next week.
That's not the end of it. It never is with ADF (or its fellow traveler, Liberty Counsel, who represents Lisa Miller in the long-running Miller-Jenkins litigation.) Berwick is still arguing in the lower court that Wagner is not a parent. Stay tuned.