On occasion, a couple needs outside help to conceive a child. There are various methods of assisted reproduction, each of which brings different legal consequences. They include:

1. Artificial insemination
2. In vitro fertilization/embryo transplant
3. Surrogacy

Artificial Insemination

There are two types of artificial insemination (a.k.a. intrauterine insemination). Artificial insemination with semen of an anonymous donor is called heterologous insemination or artificial insemination by donor (“AID”). The second type is homologous insemination, which mixes the husband's and donor’s sperm for “confused artificial insemination (“CAI”). This method may provide a psychological boost to the husband because he can think his sperm may have been a contributing factor in conception.

In the context of a married couple, AID may be used if the husband is sterile or where there is another medical reason, such as possible transmission of a sexually transmitted disease that prevents the husband from being a suitable donor. Before any insemination is completed, the parties are required to execute a formal agreement signed by the medical doctor completing the procedure. Given the historical definition for illegitimacy—despite the fact that the parents are married and the husband gave his consent—a child produced from this procedure was considered illegitimate.

To counter this negative result and avoid the complication of “adoption” by the husband when there is no recognized father; statutes have authorized the performance of AID by physicians upon the written consent of both husband and wife and provide that a child so conceived is to be treated as the natural child of the husband. Besides, such a public proceeding can be embarrassing for the couple, especially since in most cases couples do not want to publicize their inability to conceive without outside intervention.

In addition, there is sometimes a further stipulation that the donor of semen is not to be treated as the natural father of the child, thereby leaving that designation to the husband. This stipulation protects the donor from being liable for supporting the child in the future.

When artificial insemination is used, regardless of the type, the legal picture becomes murkier regarding the status of the child and the rights and duties of the males involved (i.e. the donor and husband). Certainly, donors may be concerned with any possible legal obligation to child support. A husband may have this same concern, especially since the child is not biologically his. Generally, the donor waives any rights and the husband assumes all rights.

Section 702 of UPA (2000) clarifies the relationship of the parties in assisted reproduction. Specifically, a donor (egg or sperm) is not a parent of a child conceived by means of assisted reproduction.

Example: Nancy and Bill are in the middle of a divorce. During their marriage they conceived their son Sam via AID. Nancy wants to disprove paternity so she can gain full custody of Sam. Bill also wants custody. The court would likely deny Nancy’s request for a blood test because her prior joint consent to AID provides a conclusive presumption that Bill is Sam’s father, thereby allowing him to share in custody of their child.

Married women are not the only candidates for artificial insemination as a conception aid. Unmarried women (including same-sex couples) may choose to use donors (either egg, sperm or both). Once again, the donor would not be considered the legal father of the child, thereby leaving the child with no legal father. Subsequently, however, if the woman decides to marry, her new husband is free to adopt the child without having to first obtain permission from the putative father, who remains unidentified.

If a lesbian couple has a child through artificial insemination, only the birth parent is recognized as the legal guardian. Through second-parent adoption, both parents can obtain legal custody of the child. In states that do not allow second-parent adoption, if something happens to the custodial parent, the remaining parent, even if she has been raising the child for years, can be seen as a stranger in the eyes of the law.

In Vitro Fertilization/Embryo Transplant

In vitro fertilization involves several steps. The first step in this procedure requires a woman to undergo a series of hormonal shots to stimulate the production of mature oocytes (cells from which an egg or ovum develops). The egg cells are then retrieved and suitable eggs are inseminated and allowed to incubate for about 12 to 18 hours. Successful fertilization results in a zygote (a fertilized ovum before it undergoes cell division) that develops into a four- to eight-cell pre-embryo. At that stage, the pre-embryo is either implanted in the woman’s uterus or frozen for possible future use.

Controversies involving embryo transplants can breed litigation, usually in the context of their disposition (as property) in a divorce proceeding. The disposition of any leftover stored eggs or sperm is uncertain because the law is several steps behind these medical advancements. Particularly, in light of two dueling rights—the right to procreate and the right not to procreate—it is difficult to determine whose rights take precedence when there is disagreement as to the disposition of frozen pre-embryo and sperm. Courts have to balance the competing interests and come to some kind of workable solution.

Example: A divorced couple disagreed about the disposition of seven pre-embryos (a fertilized ovum or egg cell up to approximately 14 days old, which is the point when it can be implanted into the uterus). The contract they signed when they undertook the in vitro fertilization procedure stated that the clinic would take ownership of any leftover tissues in the event of divorce, unless the court specifically addressed the issue in the divorce decree. The conflict continued because the divorce decree did not address this issue. In addition, the wife wanted the pre-embryos destroyed; the husband wanted to donate them to other infertile couples. The court sided with the wife because it found no impairment of the husband’s right to procreate; he was still able to bear children naturally. Rather, allowing donation of the pre-embryo “would impair [the wife’s] right not to procreate.” See J.B. v. M.B., 331 N.J. Super. 223.

UPA (2000) specifically does not address the ownership or disposition issue of these items. Rather, it merely addresses the effect of paternity in the event of dissolution of the marriage or withdrawal of consent. Specifically, the former spouse would no longer be considered a parent of the resulting child. See UPA (2000) § 706. The same result applies to the parental status of a deceased individual. See UPA (2000) § 707.

Surrogacy

Surrogacy is another controversial area with several high profile court cases illustrating the struggle between the surrogate mother (if she is the natural mother) who changed her mind about relinquishing the child to be available for adoption by the father’s wife. An early case involved Baby M (In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988)), where the father (who had donated his sperm) sued the surrogate mother (also the natural mother) to force her to turn over the child. Initially, a New Jersey trial court upheld the contract, thereby terminating the surrogate mother’s parental rights. Subsequently, the New Jersey Supreme Court reversed that decision, finding the contract too close to baby-selling and, therefore, unenforceable. This resulted in the father obtaining custody and the surrogate mother obtaining visitation.

Example: Phoebe and Todd Henderson entered into a written agreement with Phyllis and Anthony Taylor whereby Phoebe agreed to become a surrogate mother for the benefit of the Taylors. Accordingly, Phoebe was artificially inseminated with Anthony’s sperm (the procedure was not conducted by medical personnel) and became pregnant. Subsequently, Phoebe reneged on the plan to give the baby to the Taylors (permitted under the contract); Anthony sought genetic testing as the first step in establishing a parent/child relationship. The court decided Anthony was entitled to the test because the procedure was not followed that would have permitted Phoebe to assert the presumption that her husband Todd was the legal father of the child. The statute required that the donor be anonymous and the procedure be performed by medical personnel under strict requirements set out in the statute. See, e.g., Turchyn v. Cornelius, 1999 Ohio App. LEXIS 4129 (Ohio Ct. App., Mahoning County Aug. 26, 1999).

In these types of situations, some courts focus on who is the intended parent (as opposed to the biological parent) to decide competing parental claims. In those cases where the egg is also contributed and the sperm is artificially inseminated, the surrogate mother really has no biological tie to the child. Her only role was loaning out her uterus.

Example: A married couple donates the egg and sperm, which is then implanted into a surrogate mother. The surrogate agreed to carry the baby to term for a $10,000 fee and then surrender the child to the married couple. Later, however, she changed her mind and wanted to keep the child. Under California law, the court concluded that both the genetic mother (the wife) and the birth mother (the surrogate) could potentially be considered the child’s mother. Yet, California law looks more toward the intentions of the parties. In this case, since the married couple intended to conceive a child to raise together, the wife should be considered the child’s mother. See, e.g., Johnson v. Calvert, 5 Cal.4th 84, 851 P.2d 776 (1993).

Article 8 of UPA (2000) is a completely new section dealing with gestational agreements—something not contemplated back in 1973. UPA (2000) requires validation by a court prior to pregnancy for the agreement to be enforceable. See UPA (2000) § 803. If the agreement is not judicially validated, it is unenforceable. See UPA (2000) § 809.

Not all states recognize gestational agreements. As of December 2000, 11 states allowed them via statutes or case law; six states voided such agreements by statute; eight states did not ban them per se, rather they banned compensating the gestational mother and two states simply refused to recognize such agreements. In the remaining states, such agreements are recognized in some form. In those jurisdictions that permit such private agreements, couples could run into a Full Faith and Credit problem in getting another state to recognize the arrangement (if it violates that state’s public policy), if they move to a state that does not recognize these types of agreements.