An analysis is made of the legislation of countries regulating the procedure for determining the maternity and paternity of children conceived through the use of assisted reproductive technologies. The features of the legal regime of donors of genetic material, the conditions and procedure for the use of cryopreserved embryos are examined. The legal nature of surrogacy agreements as a form of artificial insemination is determined.
Assisted reproductive technologies include all medical procedures that involve the use of human semen, or human embryos, including artificial insemination, removal and implantation of germ cells, removal and implantation of fertilized eggs, and other specialized medical procedures. Other medical procedures may be listed as assisted reproductive technology at the discretion of the U.S. government. The Uniform Maternity and Paternity Act, the Uniform Paternity Act, the Uniform Presumptive Paternity and Surrogacy Act, and state family law contain rules governing maternity and paternity determination of children conceived artificially.
The US family law, which regulates the procedure of determination of maternity and paternity of children artificially conceived, is based primarily on the principles of the priority of the family union. The possibility to establish a parental relationship in the absence of a biological relationship is a vital principle too. In addition, in the United States in 1988 the Uniform Law “On the Status of Children Conceived by Unconventional Conception” was developed. The preamble to this law determines that children, regardless of the method of conception and birth, are of the highest value and the main priority of legal protection. This law protects children conceived and born through the use of assisted reproductive technologies. Also it defines the rights of parties who have concluded an agreement on unconventional conception.
However, many difficulties arise in the legislative regulation of artificial reproductive technologies, because it is difficult to include all of the existing reproductive technologies in the legislation. Modern science has developed a large number of methods of artificial conception of a child. Majority of that differ significantly from each other and cannot be regulated by the same norms. Uniform legislation on artificial reproductive technologies pays the most attention to artificial insemination and surrogacy, since these two forms are widespread in practice.
The legislator defines unconventional conception as conception by introducing a man’s sperm into a woman’s egg without sexual intercourse – by any other means, or implanting an embryo into a woman’s egg. The notion of unconventional conception and the subject of legal regulation of the Uniform Law “On the Status of Children Conceived by Unconventional Conception” does not include cases of transfer of the husband’s sperm into the wife’s oocyte without intercourse. Thus, unconventional conception is conception that is carried out with the help of a donor. A donor is a person who provides his or her sperm or egg on a reimbursable or non-reimbursable basis.
A donor is not a woman who gives birth to a child, nor is it a husband who provides sperm or a wife who provides an egg for the purpose of conceiving a child artificially. A woman over the age of eighteen who has made an agreement to carry and give birth to a child for others using their sperm and eggs is a surrogate mother. In the case of unconventional conception, a husband and wife who have concluded agreements on unconventional conception, using the sperm or egg of one of them are considered the parents of the child. Of the many different types of assisted reproductive technology, the most common in practice is:
- Artificial insemination;
- In vitro fertilization;
- Surrogacy.
The legislation of some states also regulates other reproductive technologies. For example, the General Statute of Washington State refers to assisted reproductive technologies the artificial cultivation of an embryo using donor materials and its subsequent insertion into the uterus. Such reproductive technologies are also regulated by the Uniform Maternity and Paternity Act of Alabama. With the current level of scientific development, a huge number of assisted reproductive technologies have been developed. In any case, the universal criterion for classifying any method of conception as an assisted reproductive technology is the absence of intercourse at the time of child conception.
The Connecticut Supreme Court in Doe v. Doe held that the concept of determining paternity of a child born in wedlock. It extends to cases in which the child was conceived by a married mother through artificial insemination using biological material from her husband or an anonymous donor (Doe v. Doe, 1998). When a non-traditional conception agreement is entered into, the parties who are the parents of the child have the same parental rights and responsibilities under the agreement as the parents of a child who was conceived and born in the traditional way.
The Delaware Supreme Court in Chambers v. Chambers held that a person who has entered into a non-traditional conception agreement for the purpose of being a parent of a child. Also it is connected with the problem of raising the child as his own receives the parental rights, duties and responsibilities under the laws governing family law after the child is born, including the obligation to pay child support (Chambers v. Chambers, 406 Pa. 50, 1962). The only difference is that for such a presumption to arise, the consent of the husband of the child’s mother is required. The consent must be given in writing and signed by the child’s mother.
In addition, the presumption of paternity may also arise in the absence of a document of consent of the husband of the child’s mother to exercise parental rights, if the man who is married to the mother of the child shares a household with her, openly acknowledges his paternity and raises the child. This norm encapsulates the legal principle that there does not necessarily have to be a biological relationship between parent and child. If a man raises a child as his own, he is the father, irrespective of whether or not there is a biological relationship between them. This principle of family law is one of the basic principles of paternity determination in the United States. The husband of the mother of a child born through assisted reproductive technology can challenge his paternity within the first two years following the birth of the child. This period does not apply if the mother’s husband did not consent to the insemination and did not provide his sperm for the insemination, if the mother’s husband did not live with the mother at the time of the insemination and after it took place, and if he never publicly acknowledged the child.
If the husband gave his written consent to be the father of a child born to his wife using assisted reproductive technology but died before the insemination was performed, he can be the father of the child only in one situation. It means that his written consent to be the father of the child born using assisted reproductive technology was previously obtained in the event that such child is conceived after his death (Chambers v. Chambers, 406 Pa. 50, 1962). As a general rule, under uniform U.S. law, a donor who provides biological materials for artificial insemination is not the parent of the child.
State law also protects the donor from parental responsibility with respect to a child born using his or her biological materials. This principle is also enshrined in jurisprudence. For example, in the case of Pruitt v. Lindsey, the Supreme Court of Georgia officially stated that in limited situations, such as artificial insemination, biological parentage is not a basis for the obligation to support the child (Pruitt v. Lindsey, 1991). For example, in the Ohio C.O. case, the court held that Ohio’s sperm donor statute does not apply to those donors who are known, and such male donors may assert their claims for paternity in court. Also of interest is Thomas S. v. Robin Y, a New York State case in which the court held that an artificial insemination agreement that barred Tomas S. from claiming any parental rights was null and void, and legally vested the known sperm donor with parental rights (Mtr. of Thomas S. v. Robin Y., 1993). Some state laws provide that if artificial insemination is performed with medical intervention, the sperm donor is not considered the father of the child, and if artificial insemination is performed without medical intervention
Another way of artificial conception of a child is surrogate motherhood. It is one of the forms of artificial insemination. A surrogate mother carries a baby for the purpose of transferring it after birth to the spouses who are the child’s parents under the surrogacy agreement. The surrogate mother is usually not the child’s biological mother. Consequently, after the child is born, the surrogate mother does not acquire any parental rights or obligations.
Surrogacy is a rather common type of artificial reproductive technology in the United States of America. It is used when a woman is physically unable to bear and give birth to a child. Sometimes women contract surrogacy for other reasons as well – for example, they do not want to take a career break from carrying and giving birth. Surrogacy is governed by uniform U.S. and state family law. Thus, in Johnson v. Calvert, a California court approved a surrogacy agreement entered into in 1990 in which one party agreed to carry an implanted embryo of the unborn child, give birth to that child and transfer the child after birth to the biological parents, and the other party agreed to pay a certain sum of money (Johnson v. Calvert, 1993). In the decision in this case, the court found that the agreement, the subject of which was the carrying and birth of the child by a surrogate mother and its subsequent transfer to the biological parents, was not contrary to the public interest and did not violate public policy.
Difficulties arise in disputes where a surrogate mother refuses to deliver a contracted child to the couple. For example, in the In re Baby M. case described above in New Jersey, the trial court found the surrogate mother’s birth contract to be valid, ordered that the child be transferred to the father (In re Baby M., 1988). Also he authorized the adoption of the child by the father’s spouse, thereby depriving the biological surrogate mother of her parental rights.
The New Jersey Supreme Court, hearing the case on a party’s complaint, held that surrogacy contracts were unenforceable because they were contrary to public policy principles. The reason is they addressed child custody without regard to the interests of the child and in violation of true voluntariness, as it potentially led to the exploitation of the poor. The court determined that this case should be handled in the same manner as any child custody dispute. On that basis, the court upheld the award of the child to the father, but granted the surrogate mother the right to communicate with the child. In contrast, the Kentucky Supreme Court held that the state’s prohibition on child trafficking was not a basis for holding surrogacy contracts null and void, and denied a petition to invalidate a surrogacy agency’s document authorizing it to engage in the activity. In California, the court ruled that only the spouses who contracted with the surrogate to give birth to the child were the parents and ordered that the surrogacy contract be enforced.
In the case of Buzzanca v. Buzzanca, whose subject matter was parental rights to a child in a situation in which a couple used sperm and eggs from anonymous donors to obtain an embryo, which was then implanted into a surrogate. California court found the couple to be the parents of the child (Buzzanca v. Buzzanca, 1998). In contrast, in New York State, the court forbade the woman who carried the embryo, which was later implanted in the surrogate, to be considered the mother of the child.
In the United States surrogacy is perceived ambiguously, and in some states it is explicitly forbidden. For example, in California until the mid-1970’s using a surrogate mother to carry and give birth to a child was considered a crime and was subjected to criminal prosecution. Nowadays, various states have enacted numerous laws regarding surrogacy. Although uniform legislation is on the way to legalizing surrogacy, most states prohibit surrogacy contracts outright, such as New York and Michigan. In other states surrogacy contracts are allowed but subject to mandatory regulation, such as Virginia. In fact, however, restrictions in individual states are ineffective, because if individuals who wish to have a child want to use the services of a surrogate, they need only go to a clinic in another state where surrogacy is allowed.
The main moral argument against surrogacy is that it is unacceptable to make a child a subject of an economic contract, to turn it into a commodity. Also the point is as it is unacceptable to deprive a woman who has given birth of her inalienable maternal rights in exchange for money. In addition, in cases of surrogacy there is a great risk of exploitation of women in need of money. Therefore, some legal scholars, who believe that carrying and giving birth to a child by a surrogate mother for material remuneration is immoral, support and consider permissible surrogacy on a voluntary and gratuitous basis.
For example, the U.S. Supreme Court in Maher v. Roe determined that “the decision to bear a child is an inalienable human right protected by the United States Constitution, but nevertheless it is not a basis for prohibiting surrogacy agreements. Although the court determined that surrogacy is not against the U.S. Constitution (Maher v. Roe, 1977). It also found in the case that individual state laws may prohibit charging fees for a surrogate to carry and give birth to a child.
Thus, in Doe v. Kelley, the Michigan Supreme Court found that a surrogacy agreement can only be pro bono because Michigan family law prohibits charging the persons concerned any fee when adopting a child, modifying the exercise of parental rights, or other similar actions. Also of interest is Inc. v. Kentucky, decided by the Kentucky Supreme Court, is also of interest. The Attorney General of Kentucky petitioned the court to revoke the registration of the Surrogacy Association because, in his opinion, the organization’s purposes. By his point of view, the development of surrogacy performed for compensation, were contrary to Kentucky’s adoption statute. It prohibits the payment of any money to the person exercising parental rights in order to change the custody and exercise of parental rights.
The court, after analyzing Kentucky adoption law, concluded that entering into a surrogacy agreement for a consideration was a fundamentally different legal relationship from adoption and could not be governed by adoption law and that the legislature could not interfere with such relationships and determine whether they were for a consideration or for no consideration, the surrogate in entering into such agreements was free to decide whether or not to enter into the agreement for a consideration. New York courts have taken a similar approach. In In the matter of the adoption of baby girl L.J. the New York Supreme Court ruled on two separate issues. It granted parental rights under a surrogacy agreement to the donor whose biological materials were used in the artificial insemination of the surrogate and who intended to father the child. Also to his spouse, and it determined that a surrogacy agreement could not be for compensation. In deciding the first issue, the court pointed out that the interests of the child should be the primary consideration in such situations. And in deciding the second, the court stated that it respected the Kentucky Supreme Court’s decision in Inc. v. Kentucky, and determined that surrogacy contracts were fully consistent with New York family law and could be compensatory in nature (Inc. v. Kentucky, 2018). And in the New Jersey court’s consideration of In re Baby M, another approach to the question of whether a surrogacy contract can be compensatory can be highlighted: the court held that a surrogacy agreement is a contract and must be governed by the rules of contract law (In re Baby M., 1988). The court also drew attention to the fact that the relationship to establish parental rights under surrogacy contracts should not be regulated by adoption law, as it is a fundamentally different relationship from adoption, and that a surrogacy agreement, being primarily a contract, may be compensatory in nature.
The judicial practice discussed above illustrates not only the American courts’ approaches to the issue of whether a surrogacy agreement may be compensatory, but also reflects different views on the nature of surrogacy agreements. Restrictions on the use of artificial reproductive technologies in certain states are actually ineffective, since to perform artificial insemination or another type of artificial reproductive technology, one simply needs to use the services of a clinic located in another state.
References
Buzzanca v. Buzzanca. (1998).
Chambers v. Chambers, 406 Pa. 50 (Pa. 1962). (1962).
Doe v. Doe. (1998).
Doe v. Kelley. (1997).
In the matter of the adoption of baby girl L.J. (1986). Web.
In re Baby M. (1988).
Inc. v. Kentucky. (2018).
Johnson v. Calvert. (1993).
Maher v. Roe. (1977).
Mtr. of Thomas S. v. Robin Y. (1993).
Pruitt v. Lindsey. (1991).