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 infertility 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 area 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 to not 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 a 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 also 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 sort 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 a 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 a 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 from 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.”