When it takes more than two
By Jan Goodwin, Conceive Magazine, Spring
2005 - Volume 2 Issue 1
Third-party reproduction and the law
Third-party reproduction dates back to at least the Old
Testament, points out the American Fertility Association.
When the Biblical Sarah was unable to conceive, she urged
her husband, Abraham, to impregnate her maidservant, Hagar.
By this method, in perhaps the first recorded case of surrogacy,
Abraham and Sarah were able to have a child.
Fast-forward several millennia, and nearly 10 million women
in the U.S. are now using fertility services, according
to the federal National Survey of Family Growth. Yet, despite
this vast number, there are no federal guidelines to govern
the rapidly growing practices, and few states have comprehensive
laws. The laws that currently exist are a poorly constructed
patchwork quilt that can be confusing even to legal practitioners.
“This whole are of law is an emerging and changing
field,’ says family attorney Brette McWhorter Sember,
author of The Complete Adoption and Fertility Legal Guide
(Sphinx Publishing, 2004) “The response by most states
has been not to legislate, because it is currently viewed
as a huge mess. There are also so many strong opinions about
the different assisted reproduction methods, it’s
very difficult to pass laws. Too often, assisted reproduction
is reduced to debates about buying and selling babies.”
In states without specific statutes on the books, cases
regarding surrogates (who use their own egg and donated
sperm to carry a child for the couple) and gestational carriers
(who are not biologically connected to the child they carry),
can get extremely messy. In these states, if no court order
is in effect, the woman who gives birth to the child is
viewed as the legal mother, no matter what the original
intent or arrangement may have been. A case currently going
through the courts illustrates this legal can of worms.
Thirty-year-old Danielle Bimber, a Pennsylvania gestational
carrier, gave birth to triplets in November 2003. James
Flynn, 62, is the biological father of the children. The
eggs came from an anonymous donor and were fertilized by
Flynn’s sperm. But since Pennsylvania has no laws
on gestational carriers, the judge ruled that Bimber is
the mother, even though she has no biological connection
to the boys. Complicating the issue further, the egg donor
is now suing for custody.
Part of the problem for states trying to legislate is that
our society has yet to decide on the bioethics of reproductive
technology. Consider the sorts of issues the law will have
to decide on, says Daniel Becker, a New York City based
reproductive rights lawyer, who has two children of his
own through assisted reproduction. “Should we treat
donated embryo with more respect than donated sperm, for
example? Legally, what is a pre-embryo? Is it personal property,
or something else? Is it an individual, with individual
rights when it is not a person under the definition in Roe
v. Wade? From a legal-ethical point of view, at most a pre-embryo
has the potential of creating a child, no matter what assisted
reproductive method you choose,” says Becker. “Until
there is a positive pregnancy or live birth, there is just
the potential of a child. The complexities of creating law
in such cases are enormous.”
In the meantime, people considering adding to their families
with third-party or assisted reproduction need to protect
themselves by learning as much as possible about the laws
that do exist.
Using a Sperm Donor
In the vast majority of states, if a married woman with
the consent of her husband gives birth to a child conceived
by artificial insemination using donor sperm, the child
legally belongs to the couple, even though the husband is
not the biological father. Since donor insemination has
been around much longer than some of the newer, developing
technologies, it’s not surprising there are well-established
laws governing it. But parents still need to understand
that regulations may vary from state to state. Some, for
example, require a husband’s consent in writing.
Also, most of these state laws apply specifically to married
couples who need donor sperm to conceive. “Everyone
else, whether they are single , or in an unmarried heterosexual
or homosexual relationship, may not be able to get such
protection form the state law,” warns Susan Crockin,
a Massachusetts lawyer specializing in adoption and reproductive
technology law.
Things become a bit more complicated when sperm from a
known donor rather than an anonymous one is used. In that
case, it’s essential that the intended parents and
the donor sign a legal contract severing the donor’s
rights to custody and visitation. The easiest way through
all the bureaucracy is to use a well-known clinic where
the contract for sperm donors and recipients is an automatic
part of the process. Adds Sember, ”This is also the
time to establish in writing if additional donations will
be available from the same person if you want genetic siblings
in the future.”
Using an Egg Donor
Only in six states – Florida, North Dakota, Oklahoma,
Texas, Virginia, and Washington- have laws requiring that
the donor give up her rights to the egg under a valid donation
agreement, and specifying that she has no right to custody
or visitation with any resulting child. In such cases, the
donor also cannot be held responsible for child support,
says Sember.
In one case in New York, when the parents divorced, the
husband tried to claim that his wife was not the real mother
of their child because an egg donor had been used. His argument
was deemed invalid because the wife had parented the child
for a number of years. “But, the legal battle caused
tremendous heartbreak, plus the expense of going to court,”
says New Jersey reproductive lawyer, Melissa Brisman.
All parties involved in egg donation should record in writing
their joint intentions. A legal agreement is a well-advised
precautionary step. “Because of the lack of law, there
is no guarantee that such an agreement is enforceable,”
warns Crockin. “But it does provide a roadmap of the
intentions of the parties entering into such an arrangement,
which could help if the case went to court.”
Donating or Adopting Embryos
Only six states – California, Florida, Louisiana,
North Dakota, Oklahoma, and Texas – have laws on embryo
donation that make the recipient the legal parent or parents,
says Sember. Yet embryo donating is becoming increasingly
popular as more couples use in vitro fertilization and have
extra fertilized eggs or embryos frozen and stored for later
use. An estimated 400,000 human embryos are currently frozen
and stored in the U.S. now, according to the National Embryo
Donation Center (NEDC) in Knoxville, Tennessee, a non-profit
Christian organization (www.embryodonation.org). Couples
who have embryos available but decide their family is complete
must choose whether to offer the embryos to research, allow
them to be destroyed, or donate them to a couple who is
unable to conceive. Since the Bush administration opposes
embryos being used for stem cell research, government grants
are being made available to promote embryo donations.
Reproductive attorneys warn that this area is so new that
no one knows what the legal outcome would be if an embryo
donor decided to come back and fight for parental rights. “This means the recipients must have as airtight a
contract as possible,” says Brisman. “And then
you hope the courts honor it. That’s all you can do
at this point. So few states have laws on this, it could
become a legal quagmire.”
Using a Surrogate
Surrogacy is perhaps the most legally controversial of all
assisted reproductive technologies, according to Sember.
A surrogacy arrangement involves a woman – the surrogate
– using her own egg and donated sperm to become pregnant
and carry a child for another couple. “Even in states
that are progressive in most other things, such as New York,
surrogacy is looked upon negatively,” says Becker.
“If financial compensation is involved, it is deemed
as selling babies.” Some states have banned surrogacy
outright, or made it a crime to pay a surrogate. In other
states any surrogacy contracts are regarded as unenforceable.
It wasn’t until the headline-grabbing case of Baby
M in 1987, in which the biological father eventually won
custody of a child from a surrogate mother Mary Beth Whitehead,
that a number of states even passed laws regulating surrogacy.
Experts concur that in most states, traditional surrogacy
arrangements (as opposed to arrangements with a gestational
carrier) are probably the most vulnerable collaborative
reproductive arrangement from a legal perspective.
“Surrogacy is legally complicated, but can be done
successfully,” says the American Fertility Association,
which recommends that surrogate and biological parents obtain
separate legal counsel to avoid the conflict of interest
that would arise if one attorney counseled both parties.
Currently, laws in California, Connecticut, Maine, Massachusetts,
Pennsylvania, and Rhode Island are considered most supportive
of the rights of the intended parents.
Using a Gestational Carrier
In order to reduce the risk of legal complications, many
couples now prefer to use a gestational carrier rather than
a traditional surrogate. The difference is that while a
surrogate uses her own egg to become pregnant, a gestational
carrier uses both donor egg and donor sperm to carry a child.
The egg and sperm may or may not be from the couple who
are the intended parents of the child. Unlike the surrogate,
a gestational carrier has no biological connection to the
child she bears. Because of this distinction, the law views
gestational surrogacy different that traditional surrogacy.
In this case, many states do not consider the carrier as
the legal mother of the child. A growing number, in fact,
now have statutes or judicial decisions that allow the intended
parents to be recognized as the legal parents, at least
in the absence of any opposition.
Currently Florida, Illinois, Massachusetts, and Virginia
have procedures that permit the biological parents to be
listed on the birth certificate, rather than the gestational
carrier. But each state handles this differently, and in
some cases a court order is needed. “If the parents
are from one state and the carrier from another, the law
from both places must be factored into ant contract,”
says Crockin.
Adopting
States have long had established procedure for adoption,
and no matter what type of adoption you choose – open
or closed, agency or private, domestic or international
– you will require an attorney to represent you. “If
you go the agency route, make sure you use a reputable agency,”
says Sember, who advises the prospective parents check out
agencies by talking to the state authorities, speaking with
others who have used the agency, and going to informational
meetings to ask questions.
She adds, “All adoptions require some form of consent,
usually from the birth parents, if they are known. And father’s
rights are a growing issue. If the biological father is
unknown, if the birth mother lies or says she doesn’t
know him, this can be a problem.”
Some states now have putative father registries. A man
can sign up and state that he might be the father of the
baby a specific woman is carrying. In these cases, the father’s
consent must be obtained before the child can be adopted.
“The problem is, the birth father often doesn’t
know he’s fathered a child. And most men do not go
and register after every sexual encounter,” says Sember.
Another potential legal hurdle in adoption is revocation,
when a birth parent withdraws consent. Seventeen states
do not permit revocation unless the adoption was made fraudulently.
The remaining states have revocation periods ranging from
three to 60 days.
Finally, couples planning to adopt a child from a foreign
country should know that they may have to ensure the adoption
is valid under two sets of laws: their own state laws and
the laws of the child’s country of origin.
Because this is such an emerging legal issue and the laws
are in flux, and because legislation varies so greatly from
state to state, it’s essential that couples considering
third-party arrangements be represented by a qualified reproductive
attorney.
Making sure the law is
on your side
When it comes to third-party
reproduction, the thing to remember is that the law
is constantly changing. It’s crucial to thoroughly
research state laws, and to make sure you use as experienced
reproductive rights or adoption lawyer. How to find
one and learn more about the laws in your area?
For assisted reproduction,
contact the following organizations and ask to be
put in touch with your local chapter:
American Fertility Association,
666 Fifth Avenue, Suite 278,
New York, N.Y., 10103, tel: 888-917-3777,
Resolve, 1301 Broadway, Somerville,
MA 02144,
tel:888-623-0744,
For adoption contact the following
organization:
The American Academy of
Adoption Attorneys, P.O. Box 33053, Washington,
D.C., 20033, tel: 202-832-2222,
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