To realize her lifelong dream of becoming a mother, Cindy Close and a longtime friend used in vitro fertilization to get pregnant. Neither was married, and both wanted to be parents. She expected to raise the children, and he would be a part-time father figure supporting the family while living his own life.
After giving birth to twins in July, Close said, Marvin McMurrey shocked her by saying she was just a surrogate, demanding custody and revealing he is gay.
Now, the courts will determine what rights Close has as she struggles to define, legally speaking, what it means to be a mother.
"There has never been a case in Texas quite like this one," said Jim Paulsen, a professor at South Texas College of Law. "It combines three or four of the strangest areas of Texas family law all in one package. I'm glad I'm not the judge."
McMurrey has custody of the children, who are living with his boyfriend. According to Close, McMurrey does not live at the home.
McMurrey filed a lawsuit in August asking that a judge declare he is the father and that Close was a surrogate, despite presenting no written agreement or contract.
That ruling, according to Close and her attorneys, would mean that the children will have no legally recognized "mother."
"If Marvin gets his way, the only four people who will have ever walked this earth without a mother would be Adam, Eve and these twins," said Close's lawyer, Grady Reiff. "What they're trying to perpetuate is pretty unheard-of in this state."
He said the law in Texas is well-settled.
"It's our position that a woman who give birth is the mother, unless there is a (surrogate) agreement," Reiff said. Close is counter*suing for child support, as well as for custody.
Attorneys for McMurrey and his partner, Phong Nguyen, declined comment and said their clients would not comment on the situation.
Typical surrogate contracts are defined by statute. A surrogate is impregnated with a donor's eggs that have been fertilized, usually by the intended father's sperm. The intended mother's eggs are not used and she does not carry the child, Paulsen said, but she is the "mother" because of the agreement.
Donor eggs used
In this case, Close said, the doctor recommended she use donor eggs to lower the risk of birth defects because she was 47 when she was impregnated, not because she was a surrogate.
Paulsen said McMurrey obviously is the father, but the case is rife with legal issues.
"The father is arguing a very technical legal position," Paulsen said, "but it's one of those cases that you hope the judge will be able to look at more than just preliminary technical matters."
He said the courts aren't often asked to determine who a child's mother is, because it is determined either by DNA or intent in a written contract.
"It is very unusual to see a case where maternity is in question," said the professor. "In this case, the woman admits she is not biologically related, but says she always intended to be the mother."
Typically, Paulsen said, the surrogate agrees in advance that she will not be the mother, and the intended father and mother are spelled out by contract.
However, he said, Texas law does not exclude other arrangements for surrogates, an issue the courts may take up in this case.
Another issue that might be a factor is that the intended parents have to be married for a surrogacy to be a valid contract in Texas.
Same-sex marriage is not legal in Texas and is not recognized by the state.
The case is expected to be heard Monday in state District Judge Bonnie Hellums' court.
Since the prematurely born twins went from the hospital to Nguyen's home, where the nursery is set up, Close gets to see them for two hours a day on weekdays and four hours on Sunday.
Watched during visits
She said small cameras have been set up to watch her, and she is not allowed to use her phone or take pictures of the children. She also is not allowed to breast-feed the children, so she is pumping and freezing breast milk to feed them if she regains custody.
"This was not a surrogacy, so it never occurred to me that I would ever need a written agreement," Close said of the lack of any documentation. "If anything, I thought he would lose interest because I didn't expect him to be a very involved father."