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.