Assisted reproductive technology (“ART”) describes the methods used to help women become pregnant through the aid of artificial means. ART encompasses several procedures, including but not limited to artificial insemination, fertility drugs, in vitro fertilization and surrogacy, and obviously involves sperm donation as well. The distinction between the different types of ART becomes very important because state law differs on the impact each procedure has on parental and legal rights of the parent(s) and the child.
Many state laws are alarmingly silent regarding the effect of ART on unwed mothers and lesbian couples (as well as for surrogacy amongst gay couples). Today’s post will illustrate some of these difficulties through a primary focus on artificial insemination as well as some relevant unresolved estate planning issues.
Parental Rights of Anonymous and Known Donors
Anonymous Donor – Women may choose an anonymous donor through a sperm bank. Every state has laws preventing anonymous sperm donors from asserting legal rights such as visitation or parental rights. While many states allow sperm banks to release the donor’s identity once the child reaches age 18 or 21, this will usually not create any familial rights between the child and the donor.
Known Donor – Women may instead opt for a donation from a known friend so that the medical history of both the child’s parents is easily obtainable, and so that the woman can opt for the child to have a close relationship with the donor if she so desires.
Rarely, a donor will be held to owe parental obligations, such as child support. In 2002, one trial-level court in Pennsylvania ruled that an extra-marital donor did owe child support to a child born from the recipient, even though the two orally agreed that she would not hold him responsible. However, the Pennsylvania Supreme Court overturned this decision in 2007. To this day, Pennsylvania still does not have legislation that states the legal obligations, if any, of the donor.
Other states have legislatively stated the donor’s responsibilities, but only in terms of husbands and wives. For example, Virginia law states that a woman giving birth to a child aided by ART is deemed that child’s mother, and her husband is deemed the child’s father. A donor is not the parent of a child conceived through ART unless he is the mother’s husband. In Maryland, a child conceived through ART of a married woman with the consent of her husband is deemed the legitimate child of both, and the husband’s consent is presumed.
However, neither statute addresses the donor’s obligations as applied to unmarried women or lesbian couples.
To add to the complexity, approximately 20 states (but not Virginia, Maryland, or Pennsylvania) have adopted some form of the Uniform Parentage Act, which generally requires that the insemination be performed by a licensed physician and the woman’s husband provide written consent before the known donor is released from any familial duties. If mothers-to-be in these states avoid the stated requirements, the unintended consequence could be that the donor is deemed the child’s father, with all legal parental responsibilities intact.
Estate Planning Considerations
The following are the most controversial estate planning issues stemming from the above, none of which have been conclusively resolved throughout most of the U.S.
- Whether a child born as a result of ART using a deceased husband’s frozen sperm becomes an heir of the husband. At this point, only Colorado, North Carolina and Utah statutes answer this question directly (their answers are yes, as long as the child is born within 45 months of his death).
- Whether a child born of a lesbian relationship is the heir of both parents or of just the birth mother. State laws widely vary here, and obviously depend on whether or not the state allows or recognizes same-sex marriages (Maryland recognizes ones formed in other states, Virginia and Pennsylvania do not allow or recognize them at this time).
- Whether a woman’s frozen eggs and embryos are inheritable.
- The legitimacy and legality of a child born through a surrogate. Pennsylvania law is amongst the most developed on this question in the nation.
The best approach to this issue is for affected mothers to seek legal assistance to draft detailed contracts with the donor before any ART is performed. The most effective contracts will consider the rights of the mothers, fathers, and donor, as well as the best interests of the child, so that a court can easily uphold it in case litigation arises later on.
Stay tuned for further developments.
- It Takes Three Baby, The Lack of Standard, Legal Definitions of “Best Interests of the Child” and the Right to Contract for Lesbian Potential Parents, Harvey L. Fisher, JD & Paula K. Garrett, Ph.D, 15 Cardozo J.L. & Gender 1 (2008) (www.docstoc.com)
- State Laws (www.hrc.org)
- Is it better to ask a male acquaintance to help me conceive or to use artificial insemination? (thejc.com)