Molly and Peter sitting in a tree
K-I-S-S-I-N-G
First comes love
Then comes marriage
Then comes Molly with a baby carriage.
Life is a bit more complicated than the nursery rhymes of our childhood days. In 1978, the first “test tube” baby was born through in vitro fertilization. Although love and marriage were never absolute necessities for producing a baby, only one woman and one man were required. That is no longer the case. True, it still takes the genetic materials of one man and one woman; but with cloning experiments being conducted in several countries, we may someday find biological reproduction obsolete.
The benefit of all this technology is that people who may not be able to conceive on their own are able to have children. The downside is that this technology is creating situations with which the courts and the legislatures have never had to deal. Consider this: Baby making used to involve two nontechnical terms—mother and father. Now a baby can be made using in vitro fertilization (with either pronuclear-stage embryo transfer or transcervical embryo transfer), gamete intrafallopian transfer (GIFT), donor oocytes, donor sperm, microsurgical epididymal sperm aspiration, intracytoplasmic sperm injection, assisted hatching of oocytes, and anonymous embryo donation. It is no longer the birds and the bees, but the birds, the bees, and the deep freeze.
When the intended parents use their own gametes with assisted reproductive technology, the baby-making process may be unusual, but it is relatively free of legal worries. When third parties participate as gestational carriers or donors, the law is less clear on balancing the rights and interests of all the parties. Although some may question whether we should be using this technology at all, the courts have consistently decided that we have a right to privacy when it comes to having children. It is not the court’s role to decide whether we should or should not be able to use a particular form of technology. That role is left to legislatures, which so far have taken a range of approaches, from banning technologies to providing a legal framework for parents, doctors, and judges.
Traditionally, only renewable body parts, such as blood and sperm, have been sold. The commercial sale of body parts has not been based on property rights. The use of gametes and embryos, because of their tremendous potential to create a child with a genetic connection to the parents, gives the intended parents the legal ability to direct and to control their use under a theory that the parents have quasi-property rights.
In Virginia, a couple asked their fertility clinic to give them their frozen embryos so that they could try a different doctor.
LEARNING THE LINGO
In vitro fertilization: A woman’s egg is removed from her body and placed into a culture dish with a man’s sperm. If the sperm fertilizes the egg, an embryo results. This embryo is then placed into the woman’s uterus or frozen for later use. If the embryo attaches to the woman’s uterus, pregnancy results.
GIFT: A woman’s egg is removed from her body or “caught” as it’s released from her ovary. It is placed in her fallopian tube with sperm from the intended father. It is hoped that fertilization occurs within the fallopian tube, with the embryo then traveling into the uterus. If the embryo attaches to the woman’s uterus, pregnancy results.
Artificial insemination (often referred to as intrauterine insemination, or IUI, in the statutes): The woman is usually given medication to make her body produce more eggs during ovulation. Using a very thin catheter, sperm is placed in her cervix or uterine cavity at the time mature eggs are released. The hope is that the sperm will at least fertilize one of the woman’s eggs. This procedure can result in multiple births.
The clinic refused. The couple sued the clinic and won. The court found the couple did have a quasi-property interest in their embryos. Not all courts are comfortable with declaring embryos as “property.” Nevertheless, you have a good chance of getting to your embryos when third parties try to interfere. Courts tend to provide parents with some form of property rights to their embryos, such as the right to possess, use, or donate. Things become much more difficult when the fight is between you and your spouse. Control battles over embryos are discussed later in this chapter.
IT’S YOUR GENETIC MATERIAL
In California, three doctors took eggs and embryos from patients who sought fertility treatments. The doctors then used these eggs and embryos for other patients. In most cases the doctors did not have the consent of the original patients to do this. California now makes it a felony to take human embryos and use them without the patient’s consent.
Whether you succeed in having all the babies you desire or decide to stop fertility treatments, there will usually be embryos or sperm left over. (There may be eggs, too, though it is still experimental to freeze eggs.) You can keep this genetic material frozen for possible future use by you, donate it to another patient, donate it for research, or have it destroyed by the clinic. Regardless of your decision, the clinic should ask you—before you start treatments—what you want to do with any remaining genetic material. This is an important step. Unless you decide what you want done with it, the clinic will be unsure how to treat this material. Even if you later amend your written agreement, it is important to have one in place before any procedures are initiated. Clinics may or may not keep genetic material on hand indefinitely. You want to make sure it is not destroyed, used, or donated without your consent.
A problem arises when a couple divorces and cannot agree on what to do with the remaining embryos. Potential human life is not mere property. This kind of dispute raises complex emotional, legal, and ethical issues.
If there is no agreement, the court will have to balance the interests of the people fighting for control. A New York couple had five frozen embryos remaining when they divorced. The wife asked for sole control of the embryos. The husband wanted to donate the embryos to the clinic. When they began their fertility treatments, the couple had signed an agreement stating that they would donate the embryos to the clinic. The court ruled that the agreement was valid and the embryos were to be donated. Other courts have invalidated written agreements if they are unclear or if they force a person to become a parent against that person’s will.
When artificial insemination is performed using anonymously donated sperm, the woman’s husband is considered the legal father as long as:
On the other hand, if no doctor is involved, a donor may be granted paternity rights. Only forty-two states have laws regarding artificial insemination, and only thirty-five of those clarify parental rights in cases of artificial insemination. In California a man donated his sperm to a lesbian couple. The woman was inseminated with the man’s sperm at home. There was no assistance from medical professionals, and the man was not present when the woman was inseminated. Later the man decided he wanted paternity rights, including visitation. Because no medical professional was involved in the actual insemination of the mother, the father was granted paternity rights.
There are now two types of surrogacy. In a traditional surrogacy, a woman (the surrogate) undergoes intrauterine insemination with sperm from the man who wants to be the legal father. The baby is produced by genetic material from the father and from the surrogate mother. Traditionally, once the baby was born, the father’s wife had to adopt it through stepparent adoption. In a gestational carrier surrogacy, an embryo is transferred to the gestational carrier. The baby has no genetic material from the carrier. Here is where it gets confusing: the gametes can come from either the intended parents or from one or more gamete donors. If the embryo is transferred from a donor, then the baby has three mothers: the genetic mother, the gestational mother, and the intended mother. Is it any wonder that weighing the legal rights of the three women, the child, and the father(s) is confusing?
LEARNING THE LINGO
Traditional carrier: A woman who gestates (is pregnant with) an embryo to whom she has a genetic relation but for whom she does not intend to be the legal mother.
Gestational carrier: A woman who gestates (is pregnant with) an embryo to whom she has no genetic relation.
Whether a surrogacy agreement will stand up in court depends on the state in which you live. Both legislatures and courts are suspicious of any contract that involves fees in exchange for a baby. Some states will uphold the arrangement if there is a contract clearly outlining the responsibility of the parties. Some states require the intended father’s wife to adopt the baby as though she were the baby’s stepparent. Some states refuse to recognize any type of contract that transfers parenthood from a surrogate to the couple who contracted with her.
In a gestational surrogacy, courts lean toward giving parenthood to the genetic parents. In those cases the person who “intends” to parent is considered the “legal” parent. The courts have considered the surrogate’s claim to the child as weaker because she does not share any genetic material with the baby. In order to make its decision, the court looks at the human relationships involved rather than at the way the baby was conceived.
In a traditional surrogacy, the surrogate is almost always considered to be the “legal” mother. In custody disputes, though, joint custody with the father and his wife is the norm. The most famous traditional surrogacy case is the “Baby M” case from the late 1980s. A New Jersey court decided that the surrogacy contract was void because it required the surrogate to give up the baby in exchange for money. Nevertheless, the court granted custody to the father and his wife. The surrogate was granted visitation rights. The court in that case stated that a noncompensated surrogacy agreement, which would not involve any type of payment to the surrogate and would not require the carrier to turn over the child until after the statutory waiting period for adoption, would be legal.
Despite the ruling in New Jersey, other states do allow surrogacy contracts, including the payment of money to the surrogate for carrying the child.
The most common terms (which continue to evolve) in a surrogacy agreement are that:
A judge has to decide who gets to keep the baby when the “parents” start fighting over custody. That’s exactly what happened in an unusual case in California. An embryo from two anonymous donors was transferred into a gestational carrier. The carrier gave birth to the baby and turned the little girl over to the couple who had hired the carrier to carry the child. The husband filed for divorce before the baby was born and refused to pay child support because, he claimed, the child was not “his.”
The trial court sided with the father and ruled that the baby did not have any parents at all. The intended mother was not allowed to adopt the girl because there was no one for her to adopt the girl from. (The carrier did not want to keep the baby. The anonymous donors did not come forward to claim the child either.) In essence, the court made the child an orphan.
The mother appealed, though, and the trial court’s decision was reversed. The higher court reasoned that the baby would not have been born if the mother and the father had not agreed to have the embryo transferred into the carrier. It was the intent of the mother and the father to have a baby. Thus, the father had to pay child support, and the mother was granted custody of the little girl.
Through the use of assisted reproductive technology, children can be conceived months—even years—after one or both of the parents die. If a couple freezes their embryos, the wife can have the embryos transferred after her husband’s death. If both parents die, the person who “inherits” the embryos could have them transferred to a carrier, thus creating a child whose parents are deceased.
The question then becomes whether the child is a “survivor” of the parent(s). This can affect the child’s right to inherit from the estate of the parent(s), to receive Social Security benefits, or to collect on a life insurance policy. Assisted reproductive technology creates a new class of children whose rights and status need to be protected. Most federal and state bureaucracies simply are not equipped to handle the implications of nonconventional conceptions and births.
In one case a woman in Louisiana was impregnated with her husband’s sperm three months after he died. One year later she applied for Social Security survivor’s benefits for her daughter. These benefits are based on a deceased parent’s earnings at the time he died. Initially her claim was denied because the law required the daughter to either be alive at the time of her father’s death or born within 300 days after it. It took several appeals for the mother to finally receive benefits for her daughter.
TALKING TO A LAWYER
Including Embryos in a Divorce Settlement
Q. My first wife and I divorced, and I received control of the embryos in the settlement. My second wife and I want to use the embryos to have children. Can my ex-wife stop us?
A. Yes. Even where a husband and a wife sign a clear agreement giving one partner control of the embryos, courts are reluctant to enforce the agreement because it forces one person to become a legal parent against his or her will. Therefore, as a matter of public policy, a court would most likely allow your ex-wife to step in and prevent you from using the embryos with your second wife because your first wife would be the child’s genetic mother.
Answer by Cindy J. Moy, attorney and author, Golden Valley, Minnesota
Under the Social Security Act, survivor’s benefits are disbursed in order to support children who were dependent on the wage earner at the time of his or her death. Children conceived after the parent’s death are not dependent on the wage earner at the time of death. Whether those children should still collect benefits is a question with which the courts are struggling right now. At the time of this writing, this situation has occurred when the mother became pregnant through technology, using frozen sperm or embryos, after the death of the father. Conceivably, however, this situation could also arise if the wage earner who died was the mother, and the father hired a surrogate to carry a frozen embryo through pregnancy after the mother died.
The Act is broadly interpreted by the courts so as to grant benefits to qualified applicants whenever possible. Some commentators predict that as Social Security funds begin to dwindle, courts will become more conservative in deciding who qualifies for those benefits. For now, these children usually receive benefits.
State inheritance laws generally require a child to be conceived before the parent died in order for the child to inherit from the parent’s estate. This is because at the time these laws were written the technology did not exist for a child to be conceived after one parent was deceased. These laws permit the state to distribute the estate among the heirs without wondering who might come along down the road. It also protects the courts from having to investigate suspicious claims from people claiming to be heirs conceived after the parent died.
The state has to balance those concerns with the goal of keeping children off public assistance when they could be taken care of through the deceased parent’s estate. It also does not want to punish children for the way in which they were conceived.
A few states simply ban children conceived after the parent’s death from inheriting from the estate, unless the parent specifies otherwise in his or her will. This goes hand in hand with other states that require children to show that the dead parent intended to have more children. If the children cannot prove that the parent intended to have more children, they cannot inherit from the estate.
If there are children in your family who have been or might be born as a result of assisted technologies, you should have specific provisions for these children in your will, whether you want them to share in your estate or not. If you don’t handle the matter in your will, the courts will have to sort out the results in particular cases. Whenever there is a legal proceeding regarding the right of possession of embryos or other genetic material, the court should address the inheritance rights of the child along with the right of possession of the genetic material itself.
Few insurance plans directly cover treatment for infertility, although policies may cover treatment for illnesses (such as endometriosis) that contribute to infertility. Some policies will cover infertility treatment if the couple has been trying to conceive for a year or more. Consumers are fighting to get more coverage for infertility treatment. Eleven states now mandate that insurance companies include infertility treatment in their plans.
A few years ago courts began seeing lawsuits in which men and women claimed that infertility was a disability under the Americans with Disabilities Act (ADA). If infertility is a disability because it interferes with a major life event, employers are discriminating against persons with a disability by not providing an accommodation such as time off from work for doctor visits.
Employers argue that infertility is not a disability under the ADA because it does not prevent people from performing their job duties. They also argue that to be a disability, it would have to affect a major life activity. Reproduction, according to their theory, is not a major life activity. Instead, major life activities are caring for yourself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
The Supreme Court held that having children is a major life event and that infertility is a disability. Likewise, legislatures are increasingly requiring insurance companies to cover infertility treatment, including prescription drugs and surgery. The types of assisted reproductive technology that will be covered and the extent to which they will be covered remain to be seen.
