Over the past twenty years, radical changes have occurred in science, allowing persons to have children with assistance. 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 advances in science. 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.
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:
1. Intrauterine insemination
2. Transfer of fertilized eggs
3. Donation of sperm
4. Donation of egg
5. In vitro fertilization and intracytoplasmic sperm injection
6. Surrogate carrier for gestation
The above technologies may involve “collaborative reproduction” whereby person(s) who are not intended to be parents and those who are intended to be parents participate collaboratively to produce a pregnancy. The scenarios can range from simple to quite complicated.
As discussed in more detail below, countless legal issues arise from the act of assisted reproductive technology.
The development of the above medical advances has not been accompanied by uniform legal developments. In other words, state courts and legislatures hold different laws and most states have not addressed these issues directly. Therefore there is very little precedence on assisted reproductive technology issues and most courts are forced to resolve very specific issues without precedent.
One major legal issue concerns sperm donation and child support. Certain states have adopted the Uniform Parentage Act, or versions similar to the uniform act, which states that “A donor is not a parent of a child conceived by means of assisted reproduction.” Unif. Parentage Act § 702 (2002). Likewise, the law generally does not treat a sperm donor, who has no intention of becoming a parent, as a legal parent. However other states, like Pennsylvania, have found that known sperm donors can be liable for child support. In one Pennsylvania case where the parties agreed that the father would have no parental responsibilities, the court still found the donor to be responsible for child support. The courts in Pennsylvania held that the parents could not bargain away a child’s right to support, and thus the original agreement was unenforceable “on legal, equitable and moral principles.”
In vitro Fertilization and surrogacy brings about numerous legal issues. This involves the fertilization of eggs in a culture dish and the embryos are then implanted into the intended mother or surrogate.
One question that often comes up is what happens to the unused embryos? Typically, more than one embryo is fertilized and the unused embryos are preserved by cryopreservation so they may be use at a later date. A number of legal issues have arisen from the cryopreservation of embryos; however IVF technology is unregulated in the United States. Divorce cases have involved disagreements over the disposition of embryos and claims for child support. In a New York divorce case the parties were unable to conceive and tried IVF. After the first attempt the parties decided to separate. After separation, the wife wished to use the embryos for future IVF attempts. The New York Court of Appeals looked at the parties’ intent at the time when the parties began fertility treatment. The parties agreed in a medical consent form that in the event of the divorce they would destroy any remaining pre-embryos. Because there was no intent of the husband to be a parent, the court could not force one party to parent against his or her will.
When a surrogate is used for gestation the legal issues become rather complicated. 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. These cases underscore the importance of highlighting the parties’ intent in surrogacy agreements.
A 1998 California case, In re Jaycee, addressed issues involving a child that was born to a gestational carrier using a donor embryo. The intended parents were later divorced and the surrogate carrier filed for custody. The legal issues became complicated. The court held that the intent of the parties governs in determining parentage and that the intended parents were the legal parents of the child. The court found that without the intended parents’ intent to parent the child, as expressed in the parties’ contract, the child would have not been born.
In Florida, in a case where lesbian mothers conceived a child where one of the women was the egg donor (genetic mother) and the other (birth mother) carried the child to term. The birth mother was on the child’s birth certificate and the genetic mother was not. The trial court held that the birth mother was the parent of the child and that the genetic mother had no rights as the parent. As a result, the genetic mother went more than two years without seeing the child. The Florida intermediate appellate court ruled narrowly, holding that a woman in a lesbian relationship who gives her egg to her partner has legal rights to the child produced.
So that there is less ambiguity involved in these cases it is generally a good idea to have a contract that protects the parents and the child when any form of assisted reproductive technology is employed. However, one must be cautious in entering into agreements and contact an attorney for advice specific to the individual situation. For example, many states require a written contract when using a surrogate. Said contracts can include financial compensation, but some states, like Washington, D.C. forbid surrogacy agreements all together and can impose criminal penalties, which include incarceration.
It is extremely important to contact an attorney who is familiar with DC and Maryland laws before contemplating the use of ART.
In general, the laws and Maryland and DC do not address the vast array of technology available in ART. As a result, it is important to discuss with an attorney the implications of the use of any of the above technologies. For example, one would think that a contract is absolutely necessary for the use of a surrogate. However in DC, an attorney would advise you not to enter into a surrogacy contract because surrogacy contracts are void and against public policy. Not only are surrogacy contracts unenforceable, but the penalty for entering into or assisting in the formation of a surrogacy contract includes incarceration. On the other hand, contracts are absolutely necessary when considering artificial insemination. In DC, if artificial insemination is consensual, DC Code §16-909(e)(1) states that “A person who consents to the artificial insemination of a woman… with the intent to be the parent of her child, is conclusively established as parent of the resulting child.” In other words, if the donor is known, you should have a contract so that there is no ambiguity and the parties’ intent is clear.
Maryland statute differs considerably from DC when addressing assisted reproductive technology. Md. Code, Estates and Trusts § 1-206(b) states that a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes. This presumption exists only for the husband, and therefore any non-husband considering artificial insemination should consult an attorney to determine whether an agreement is necessary so that there is no ambiguity as to the intent of the parties. In Maryland, there is no statute concerning surrogacy contracts so it is likely that a surrogacy contract is necessary to clearly state the rights of the biological parents, the rights of the surrogate and any compensation that may be involved..
Neither Maryland nor DC address the majority of technologies involved in ART nor the implications involved when these technologies are used for same sex couples. Because there is little guidance from the statutes and case, the outcome may differ considerably over any dispute regarding parentage, child support, custodial rights, physical custody, access rights, and legal custody. Furthermore, there is little precedence over the rights of the child to estate issues and inheritance. One should be advised by an attorney of these potential outcomes and the implication of the use of a particular technology. Depending on the technology uses, the use of an agreement could provide for a more defined outcome should there be any dispute in the future.
Like so many legal issues, there isn’t an easy answer on protecting yourselves and your children in cases involving assisted reproductive technology. Everything depends upon the circumstances and the locale. Look no further than the prohibition and criminal implications of surrogacy within the District of Columbia. Law as it relates to ART is complicated by both the legal issues as well as the technical issues involved in the science. It is further aggravated by the emotional desire to have a child, especially when biological factors make it difficult. Of course, it is very understandable that couples focus upon conceiving the child with little thought of the legal matters. However, it is important that you consult a family law attorney in your area for advice on how best to proceed. In many cases a simple legal agreement can avoid the significant emotional and financial distress that may result from legal complications in the future.