Published by Vorzimer, Masserman & Ecoff
TRADITIONAL SURROGACY: AN
UNDTRADITIONAL APPROACH
The Legal Evolution of Artificial Insemination Surrogacy
The first reported use of artificial insemination can be traced back almost a century. Yet, while medicine and assisted reproductive technologies (ART) witness breakthroughs on an almost daily basis, the law with respect to traditional surrogacy has yet to match pace. While the legality of traditional surrogacy varies from state-to-state and country-to-country, one fact remains constant: the surrogate is and shall be considered the biological and legal mother of the child unless and until a step-parent adoption is completed (or its equivalent depending upon the jurisdiction).
More disconcerting is that because of this fait accompli, the intended mother may never be able to finalize her parental rights if her husband refuses to consent to the step-parent adoption or if the surrogate changes her mind. Notably, not only has the enforceability of an artificial insemination contract ever been upheld, but in many jurisdictions throughout the world, the contract is considered to be violative of public policy, thus permitting the surrogate to keep custody of the child and leaving the Intended Parents no recourse. In fact, the Intended Parents may not only be deprived of the custody of their child, but be held responsible for child support.
While this result has been begrudgingly accepted by the legal community and lauded by opponents to ART, a closer analysis reveals that not only is there no reasonable justification for such a result, particularly given the evolution of the law vis a vis sperm donation, egg donation and gestational surrogacy, but this approach is both logically inconsistent and arguably unconstitutional. For in those jurisdictions where sperm donation, gestational surrogacy and egg donation are sanctioned without the need for either a step-parent adoption or a judgment of maternity or paternity, no rational basis exists to treat couples who utilize a traditional surrogate differently than those who use a gestational carrier or a gamete donor. It is the conviction of this author that in those jurisdictions which recognize pre-birth judgments of maternity and paternity in gestational surrogacy arrangements, where donor oocytes are utilized, states must afford couples using traditional surrogacy the same legal procedure.
It is often the situation that the intent of the parties in these states is the determinative factor in pronouncing that the Intended Parents are the legal parents. Yet, while the intent becomes the operative word with respect to gestational surrogacy arrangements, donor eggs and/or donor sperm, the same approach has never been applied to traditional surrogacy. In situations where a married couple uses donor sperm, the Intended Parents are generally considered the legal parents without the need for judicial orders or an adoption.
Similarly, in many states, where the Intended Parents utilize donor oocytes, there is no need for court intervention. Again, the only justifiable explanation is that the States and their courts will look to and ultimately honor the intent of the parties. In fact, States which treat recipients of donor eggs differently than recipients of donor sperm, likely run afoul of the Equal Protection Clause of the United States Constitution. Consequently, legislation requiring couples who use donor eggs to have to undergo a step-parent adoption should be found to be unconstitutional.
This article advocates that when analyzing traditional surrogacy arrangements, the courts must take into account the intent of the parties and/or their laws with respect to individuals/couples who are recipients of donor gametes. Accordingly, in assessing an Artificial Insemination Surrogate Contract, at the most fundamental threshold, the Courts must recognize that the Surrogate is, first and foremost, intending upon donating her genetic material (her eggs) to the Intended Parents. Secondarily, she is intending upon carrying that child to term, ultimately to relinquish that child to the Intended Parents. This approach to traditional surrogacy will obviate the need for a step-parent adoption by the intended mother, instead allowing her to petition, like her husband, for a Judgment of Maternity and Paternity, prior to the birth of their baby.
While this approach may not seem to be in conformity with existing legal or medical precedent, consider this situation: Intended Parents contract with a Surrogate and her spouse, wherein the Surrogate will be artificially inseminated with the Intended Father's Sperm and the Surrogate and her spouse agree to relinquish the baby to the Intended Parents and shall stipulate to terminate their parental rights. However, for medical reasons, the physician determines that the only way to ensure a viable embryo and pregnancy is to aspirate the Surrogate's egg, fertilize it with the Intended Father's sperm and transfer the fertilized ovum back into the Surrogate.
In almost every jurisdiction the foregoing example will be classified by physicians and attorneys as an In Vitro Fertilization procedure. Moreover, it can not be argued that this surrogate does not intend to permit the aspiration and to subsequently donate that oocyte to the Intended Parents. So, for whatever antediluvian reason, both the legal and medical community have, perhaps unknowingly and unwittingly, focused upon the act of aspiration to differentiate between traditional surrogacy and gestational surrogacy with an egg donor or recipients of donor gametes.
Once removed from the myopic, unjustified and unsupported reliance upon the medical procedure of oocyte aspiration and instead by concentrating upon the actual intent of the parties, it will become incumbent upon the courts to treat traditional surrogacy similarly to gestational surrogacy with an egg donor and recipients of donor gametes.
It is further proposed by this article that when dealing with such an arrangement, contracts must be drafted in such a fashion to reflect both the intent to donate an egg and the intent to carry the child. Furthermore, separate consideration (whether financial or otherwise) must be provided for each.
Needless to say, this approach will not work in every jurisdiction. Legally and constitutionally, this procedure will arguably be mandated in those states that: 1) have adopted the Sperm Donor Act; or 2) follow the intent of the parties approach as set forth in the California Supreme Court case of Calvert v. Johnson; and/or 3) consider recipients of donor gametes to be the legal parent of any child, without the need for court intervention, notwithstanding the absence of a biological connection. Before considering using the method described herein, couples are cautioned to meet with an attorney to determine if such a procedure is viable in their jurisdiction.
**This article is only an abridged version and does not contain a comprehensive discussion of all legal issues relating to this new approach, nor does it fully address the mechanics of drafting the contracts and finalizing the parties parental rights. Please contact us for the complete version of this article or for more information on the arguments set forth herein.
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Last Updated: October 13, 1997
((c) 1997 By Vorzimer, Masserman & Ecoff. All rights
reserved. No part of this publication may be used commercially or
reproduced without prior written permission of Vorzimer, Masserman &
Ecoff. The Journal is published as a service to the Assisted Reproductive
Technology community. The articles are summaries of the law and are not
intended to be used in lieu of legal advice. The authors will, on request,
be pleased to discuss their articles in greater detail.
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