In the Age of Alternative Reproduction, Who Are a Child's Parents?

Whether you like it or not, families created through alternative reproductive methods are on the rise. States must acknowledge this trend and instead of seeking to prevent their use should enact legislation.
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Thanks to modern medicine, more traditional and non-traditional couples and individuals are able to become parents through assisted reproductive methods, including anonymous and known sperm and/or egg donation, surrogacy, and second parent adoption. States have varying laws on sperm donor rights and responsibilities, the legality of surrogate motherhood contracts, recognition of same-sex marriages or civil unions, the need for court-approved adoptions, and whether second parent adoptions are available.

Because there are no reporting requirements by fertility clinics and sperm banks or any identifiers on birth certificates to calculate the number of children who are the product of home-based artificial inseminations, there are no clear statistics on the annual total of children born via sperm and egg donation (or a combination of the two) in the United States.

Commentators estimate the number of people using alternative reproductive technology (ART) to be as low as 5,000 to as high as 60,000 annually. My guess is that the number is at the higher end, if not significantly more, based on the demand for sperm and egg donation, the leaps in science allowing for more successful assisted reproduction rates, infertility issues caused by a delay in starting families (10 to 15 percent of married couples have fertility problems), and the large number of medical and legal entities offering services to facilitate non-traditional means of family planning. And you know something is on the increase when it becomes a huge Hollywood fad -- think "Baby Mama," "The Switch," "The Back Up Plan," and "The Kids Are Alright." (full disclosure -- I have an ART child).

One would think given this increase that there would be legal uniformity as to parental and financial rights and responsibilities. In fact, state legislatures have mostly punted this hot-button issue, declining to readdress the definition of parentage in recent years and instead allowing their judicial systems to render inconsistent verdicts. However, some scholars have begun to take note. For example, in March 2011, the American University Washington College of Law is hosting a conference entitled "The New Illegitimacy: Revisiting Why Parentage Should Not Depend On Marriage."

The inconsistencies create an enormous amount of uncertainty ranging from inheritance rights to child support and visitation. Additionally, there has been an increase in the questionable practice of commercially contracting with foreign surrogate mothers in countries such as India. And what if, for example, a family undergoes alternative family planning in one state but then seeks dissolution of their marriage or union in another that has conflicting definitions of parentage?

And just because one State supports one non-traditional parentage does not necessarily mean that it tolerates another. For example, in Washington, D.C., surrogacy is a felony. On the flip side, in 2010, it became the first jurisdiction to confer the status of legal parent on both lesbian mothers who plan a child using donor insemination, rendering second parent adoption unnecessary.

Some States even have conflicting rules relative to egg and sperm donation because some define genetic mothers as the legal mother but deem a married man the parent of a child conceived from an anonymous sperm donor. In other words, under this scenario, if a married couple used a donor egg and a donor sperm using a surrogate, then the anonymous woman who provided the donor egg is considered the legal mother, but the husband is considered the legal father.

Is your head spinning yet?

A sample of notable state laws and judicial rulings in the past few years reflect how unsettled, inconsistent and controversial the question of parentage is:

  • In Pennsylvania, the trial and appellate courts initially forced a sperm donor to pay child support even though the mother was married to someone else at the time of insemination, and he had a contract that was supposed to relieve him of child support obligations. The State's highest court overturned the ruling, stating that the decision in line with the lower courts would undermine the legal status of sperm donors, including anonymous donors at sperm banks, and would force women to seek sperm via sperm banks rather than from men in their acquaintanceship that they admire.
  • In Michigan, a married couple with fertility issues contracted with a surrogate mother, who had acted as a surrogate for three other children previously for other women. The resultant twins were produced by fertilizing an egg and a sperm from anonymous donors, so no party shared any DNA with the children. Upon hearing that the wife had a psychological disorder, the surrogate decided to object to legal transfer at the required guardianship hearing. The court sided with the surrogate because Michigan strongly opposes surrogacy contracts and, in fact, deems such contracts as a crime punishable by up to five years in prison as well as fines.
  • In California, as well as some other states, if a person or couple is assisted by a licensed medical professional (even if the insemination is done at home), then the sperm donor automatically loses all claim to the child, and if the mother is married, the husband automatically becomes the legal father (assuming he and the mother sign a consent form to that end). But if you do not meet the above criteria, then the donor may assert claims.
  • To the contrary, in Florida, the distinction as to where insemination occurs is irrelevant -- donors waive parental rights and responsibilities. Florida also permits surrogate agreements. But before you believe that Florida is at the forefront of tolerance on this matter, note that it does not allow same-sex adoptions.
  • Now, contrast that with New York, where contracts regarding sperm donation between a couple and a known sperm donor are generally unenforceable, and the court will only look at the best interests of the child in determining the rights and duties of the donor as opposed to the parties' intent. More recently, although the state's highest court granted "legal parent" status to a non-biological mother to a child born after the couple had entered into a civil union in Vermont, the ruling does not extend to same-sex couples who fail to enter into such unions or same-sex marriage, both of which are unavailable in New York. However, New York's decision to honor Vermont's laws does not mean that other States will do so. Yet unlike Florida, New York allows second parent adoptions.
  • In Indiana, the Court of Appeals reversed a trial court's ruling that the legal mother of a child was a non-related surrogate. In that case, a married couple enlisted the wife's sister to carry her child as a gestational surrogate. The court remanded the case back to the trial court with instructions to conduct an evidentiary hearing to determine motherhood based on biological, not gestational relationship. Unlike Michigan, the fact that Indiana law does not recognize the validity of surrogacy agreements was basically ignored.

Additionally, many cases differentiate between anonymous and known donors. But further muddying the waters is the fact that since 2005, many sperm banks offer "ID consent" donors, who have agreed to have their identities released to any resultant offspring when they reach maturity. Banks that handle egg donors have not yet done so, but given the trends one can foresee that possibility. Adding yet another wrinkle is the fact that Donor Sibling Registries are now available -- think about how, for example, that might affect sibling rights to inheritances. Given the existing legal confusion, one can easily imagine future litigation on these points as well without uniform guidance.

The Uniform Parentage Act, last revised in 2002, is a model statute that was created by the National Conference of Commissioners on Uniform State Laws to serve as a guide for drafting family legislation. It recognizes that as many as five adults can be involved in the production of a single child, and adopted a functional family definition as opposed to one dominated by genetics. With regard to assisted conception, it encourages that States:

  • Authorize gestational surrogacy agreements as valid contracts requiring court approval similar to adoptions.
  • No longer require that at least one of a child's intended parents be genetically related.
  • Recognize that egg and sperm donors are not the legal parents of a child under any circumstances.

Unfortunately, only nine states have adopted versions of the 2002 Act, and for those who did, half have limited the parental rights to opposite sex married couples or declined to include the provisions related to surrogacy. Likewise, the Act does not acknowledge same sex couples, instead defining parents as a "man and woman."

My opinion? Whether you like it or not, families created through alternative reproductive methods are on the rise. States must acknowledge this trend and instead of seeking to prevent their use should enact the following legislation:

  • Establish a method to report the offspring produced as a result of ART;
  • Uniformly deem enforceable contracts between known sperm and egg donors and recipients and provide guidelines regarding drafting of same;
  • Uniformly deem enforceable surrogacy contracts and establish guidelines for judicial approval;
  • Create guidelines and clarify parental and sibling legal rights relative to ID Consent donors and Sibling Registries; and
  • Adopt a version of the 2002 Uniform Parentage Act that includes a broader definition of parentage to include same sex couples.
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