Artificial reproduction technology — and a patchwork of laws — may catch some attorneys off guard.
Mary Kay Kisthardt and Barbara Handschu, The National Law Journal
August 4, 2014 | Source: The National Law Journal

There is no question that interest in artificial means of reproduction is on the increase. A rise in the age of those attempting to conceive, which has led to an increase in infertility; a desire for children on the part of nontraditional families such as same-sex couples; and the dramatic advances in technology expanding options for child bearing has contributed to this trend.

One of the most challenging processes for the law is that of surrogacy. Our history of equating biological paternity or maternity with legal parenthood as well as the notion of exclusivity of parental status (a child can only have one legal father and one legal mother) are at odds with the reality of modern-day methods of becoming a parent.

The issue has also become a global one. Women in India have been recruited to act as surrogates for American couples, and those tables are turning. The New York Times recently reported that couples from abroad, where most countries ban the process, are now turning to the United States to find surrogates. The international interest in this topic is also highlighted by the fact that the International Academy of Matrimonial Lawyers is sponsoring a symposium on the issue at its annual meeting this year.

Like most areas of American family law, surrogacy is a matter of state law, which has created a patchwork of approaches across the country resulting in a minefield for the unwary family law practitioner. Since the highly publicized Baby M. case in 1988, when the New Jersey Supreme Court held that surrogacy contracts were unenforceable as a matter of public policy, states have responded in a variety of ways. Some states, such as Michigan, have criminalized participation in a surrogacy contract. In other jurisdictions, such as Indiana, these contracts, although not criminal, are specifically unenforceable. A small number of states, including Illinois and California, permit such agreements using statutory procedures. The vast number of states, however, are silent on the matter.

DISTINGUISHING THE TYPES

When approaching surrogacy a distinction needs to be made between what has been known as traditional surrogacy and the now, far more common form, gestational surrogacy.

In the traditional model, a surrogate is inseminated with the sperm of the intended father. This method is far more likely to result in problems than the gestational form. A surrogate who is also the genetic mother may decide not to relinquish the child at birth, resulting in a prolonged and bitter dispute over custody, such as occurred in the Baby M. case.

A less risky approach is to have the surrogate act as a gestational mother. In this process, the egg and/or sperm of the intended parents is fertilized and then implanted in the surrogate.

If a gestational surrogate is used, the nonbiological intended parent can adopt the child after the birth using the procedures available for stepparent or second-parent adoptions. All states permit married individuals to adopt the child of their spouse. In those states that do not permit same-sex marriage, the option to use a second-parent process is becoming increasingly (but not universally) available.

In 1988, the Uniform Law Commissioners promulgated an act entitled the Uniform Status of Children of Assisted Conception Act, which provided rules for establishing legal parentage for children conceived other than by sexual intercourse.

In 2000, the act was withdrawn and portions of it were incorporated in to the Uniform Parentage Act (UPA), which was again revised in 2002. Article 8 of the UPA, which is optional, governs gestational agreements. This provision provides for significant oversight of the process. In order for the agreement to be valid, a court must approve it after a hearing similar to an adoption hearing in which the birth mother’s qualifications to bear a child are reviewed as are the intended parents’ qualifications. The conception must be by artificial means and the gestational mother can be compensated. The article provides an incentive for the parties to seek court approval, because without it the agreement is deemed to be unenforceable. Furthermore, without an agreement intended parents may be liable for child support if they refuse to adopt the child.

Once the agreement is approved, the process for confirming legal parenthood is streamlined. The intended parents merely file a notice with the court, at which time the court confirms that they are the parents of the child.

The American Bar Association has also weighed in with its Model Act Governing Assisted Reproductive Technology. Under this proposed law, states may consider a procedure similar to the UPA court review or alternatively a self-executing agreement establishing that the intended parents are the legal parents of the child at birth.

This latter option is only available if the child is genetically related to one or both of the intended parents and the surrogate has not contributed any genetic material. There are also procedural requirements that must be met including legal consultation, mental health evaluations and the provision of health insurance.

With or without the provisions of the UPA or the ABA Model Act enacted in a given state, intended parents are going to continue to seek surrogacy as a means of having children. Family law practitioners need to be aware of the enforceability of agreements.

For lawyers drawing up surrogacy contracts, the UPA provisions and the Model Act provide good models for the range of issues that should be addressed.
Mary Kay Kisthardt is a professor at the University of Missouri-Kansas City School of Law. She can be reached at KisthardtM@umkc.edu. Barbara Handschu is special counsel to Dobrish Michaels Gross in New York. She can be reached at Handschu@DMGLAWNY.com.
Companies, agencies mentioned: UPA | International Academy | New Jersey Supreme Court | American Bar Association | New York Times Company

Filed Under: Family Law