Assisted Reproductive Technology (ART) is a miracle for those struggling to have a child. Couples that might not have been able to have children, including individuals, heterosexual couples, and same-sex couples, have many options in assisted reproductive technology including intrauterine insemination, in vitro fertilization, and even the use of surrogate carriers. While these incredible steps in science are useful to mankind and have given hope to millions, the issue is that masses of people are using these technologies without any knowledge of the potential legal ramifications they could encounter.
The legislatures and courts often move slowly and are no match when it comes to keeping up with changes in science. Today, with the breadth of reproductive assistance available, the law has failed to keep up with technology. As a consequence, it is difficult for a person to know how to protect themselves and/or his or her child when it comes to using reproductive technology.
The result is that couples or individuals put themselves in jeopardy of significant emotional and legal turmoil. For example, what happens when the surrogate attempts to assert parental rights over the child? In California, the Court ruled that “when the two means of establishing a mother-child relationship do not coincide in one woman, she who intended to procreate the child… is the natural mother.” In Pennsylvania, in deciding the same issue, the court looked at the genetics first to determine parentage. The court first determines the genetics and then determines if the genetic parents waived or relinquished parental rights. Using this test, the Court in Pennsylvania has found the surrogate was the legal mother. As another example, in the District of Columbia the use of a surrogate is illegal. The point is that ART as it relates to family law is a sticky and confusing issue.
As family law attorneys in Maryland and DC, we are often asked by clients about issues relating to ART. Usually the topic is brought up when a relationship ends such as during a divorce. However, it would be much more beneficial to all involved if it was addressed before the use of assisted reproductive technology. Proper legal advice, planning, and the necessary legal agreements can help avoid the messy drama that can accompany the use of ART.
We have recently released a new article detailing the legal issues surrounding ART. You can find the article here.