Understanding Reproductive Laws
In today’s society, the definition of “family” has many different meanings, and how a family is created has changed dramatically. From sperm and egg donation to surrogacy, the manner of how individuals become parents has evolved from a more “traditional” process to one where there can be a multitude of legal issues.
Sperm Donation is the more “traditional” of the untraditional family formation. It is typically used by heterosexual couples with male infertility, single women, or lesbian couples that want to start families. With sperm donation, donors are affiliated with a clinic or sperm donation center. Those individuals looking to use a sperm donor typically are women who are seeking (and are able) to carry the child themselves. Most sperm donation is still anonymous, although there have been trends toward a more transparent system so that the children are able to have access to the donor’s health and family history and/or connect with siblings. Laws concerning sperm donation in an anonymous clinical setting is fairly black and white—once the donor makes the donation, he is absolved of all parental duties and rights. Sperm donation becomes more legally complicated when the donor and the recipient(s) know each other. In these situations, there must be a clear delineation of rights, duties, and parental responsibilities agreed upon upfront and in writing.
Egg donation has become more popular over the last several decades, mainly due to advanced technology and less of a stigma regarding female infertility. Individuals looking for egg donations range from couples with female infertility problems, gay couples, and single men using a surrogate. Egg donation involves multiple hormone treatments and other medical procedures prior to egg harvesting, so it is much more invasive and medically complex than sperm donation and tends to be more heavily regulated between the parties, with contracts frequently drawn up before the process starts.
In Vitro Fertilization (IVF)
In vitro fertilization (IVF) is a procedure where mature eggs are retrieved from a woman’s ovaries and are then fertilized separately in a lab. The fertilized egg (a/k/a the embryo) is then implanted into a women’s uterus. IVF can be done with random eggs and sperm or using either a sperm or egg donation, in conjunction with one of the parents’ sperm or egg, as discussed above. Legal issues concerning IVF tend to arise when there are “remaining” embryos left after an insemination and the parents have to determine what to do with them.
Surrogacy is the process in which another women carries and gives birth to a baby for either an individual or couple who is unable or unwilling to naturally carry the child. Typically, before the process begins, a written agreement is entered into between the parties setting out all parties’ rights and duties—both during the pregnancy and after. However, whether or not this agreement can be legally recognized depends on the state in which it was executed. While there are a handful of states that have passed laws regarding surrogacy, it is not yet fully regulated within the United States.
In some states, it is against the law to pay for surrogacy. In those states, the woman who gives birth is presumed to be the mother of the child, meaning that the biological parent(s) may be required to fight for custody or “adopt” the baby after birth. In other states, if the parties’ surrogacy agreement does not account for situation encountered, and the parent(s) and the surrogate disagree as to how to resolve the situation, the courts may allow the surrogate to make the decision without the parents’ involvement or input. In a recent highly publicized case, the court would not enforce a biological father’s request that the surrogate mother terminate one of multiple fetuses because there was no provision in the surrogacy contract giving the biological father that right—thereby leaving it to the surrogate mother’s discretion.
It is very important to know the local rules and regulations if you are considering surrogacy, as this is a field of law that has developed quickly over the last several years.
If you are considering starting a “non-traditional family” using one of the methods outlined above, it is important to know and understand the applicable rules and laws within your local jurisdiction, and you should consider hiring an attorney. With Legal Services Link, you can post a short summary of your legal situation and have experienced attorneys come to you. Not time wasted searching for the perfect attorney, no hassle.
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