Millions of Americans suffer from infertility and medical advances relating to fertility practices are occurring on an annual basis. As a result, the medical advances and legal issues they are creating are intimately interwoven with the practice of every kind of family law, including paternity and maternity, adoption, and divorce.
As of 2002, the Center for Disease Control’s National Survey of Family Growth indicated that 7.3 million, or approximately 12% of, U.S. women and their partners were experiencing infertility. Various causes for the high infertility rate are thought to include women’s deferral of pregnancy to a later stage of life and environmental factors.
While IVF now is common place in the fertility world, surrogacy is now starting to appear in the mainstream media and has publically been used by celebrities such as Jimmy Fallon, Elton John, Elizabeth Banks, and Gulianna Rancic. Gulianna actually documented her entire surrogacy journey on a realty show based on her need to use a surrogate due to the risk of pregnancy for Gulianna from her diagnosis with breast cancer.
Assisted Reproductive Technologies (“ART”) including egg, sperm and embryo donation, traditional surrogacy and gestational surrogacy present new challenges to our traditional legal framework regarding parental rights. Complex issues including the constitutional context within which parental rights are determined, balancing the rights of the parties as well as issues surrounding legal definitions of parentage have resulted in numerous nation-wide court decisions and statutes emphasizing different societal values and interpretation of the law. Statutory reaction to these leaps in medical technology has varied from outright prohibition of these arrangements to complex statutory regulations including judicial pre-approval of contracts.
The advent of IVF has led to an expansion of possibilities in how families can be formed. IVF is the process whereby a woman undergoes a medical procedure in which a number of eggs are surgically removed (trans vaginally) and combined with sperm outside of the body. The resulting pre-embryos then divide outside of the uterus for several days (typically 3 to 5 days) at which point some may be transferred to a uterus and others may be cryopreserved (frozen) for use in a subsequent cycle. In 1987, Louise Brown was the first child born of IVF technology and since then, we have witnessed an explosion of options for infertile individuals and couples to become parents. It is now possible that a mother can carry and give birth to her child without having provided the genetics (egg donation); a couple can have a child who is carried by her mother but is genetically related to neither parent (embryo donation), an individual or couple can have a child to whom they are both genetically related yet a third party gives birth to the child (gestational surrogacy) just to name a few of these possibilities.
The central issue that courts have struggled with has been that of how to assign parental rights in cases of ART. In the first of the seminal cases surrounding gestational surrogacy arrangements, the Supreme Court of California considered whether gestation, genetics, contractual arrangements, or other factors were dispositive in determining parenthood. In that case, a couple entered into a gestational carrier arrangement with a woman who agreed to carry their genetic child. During the pregnancy, however, she changed her mind on her earlier agreement stating that her gestation and bonding with the child throughout the course of the pregnancy entitled her to be recognized as the child’s legal parent. The court recognized that under California’s law, either of the two women could legitimately be seen as the child’s “biological” parent, one claim based on genetics and the other based on gestation. In the court’s eyes, the intent of the parties as expressed in their legal agreement became the dispositive factor as the child would not have been conceived in the first place but for the parties’ specific agreement that the intended mother would be the child’s actual, psychological, and rearing mother. Johnson v. Calvert, 5 Cal 4th 84, 851 P.2d 776 (1993).