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.