Third Party Reproduction and the Law |
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Using an Egg Donor Only 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 children. 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 Embyos 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 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 a surrogate, a gestational carrier has no biological connection to the child she bears. Because of this distinction, the law views gestational surrogacy differently than 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 any contract,” says Crockin. 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 an 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, www.theafa.org Resolve, 1301 Broadway, Somerville, MA 02144, tel: 888-623-0744, www.resolve.org A version of this article originally appeared in the Spring 2005 issue of Conceive Magazine. Related Topics: Assisted Reproduction; Egg Donation; Infertility Support; Sperm Donation; Surrogacy |
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