Thanks to modern medicine, more traditional and non-traditional couples and individuals are able to become parents through assisted reproductive methods, including anonymous and known sperm and/or egg donation, surrogacy, and second parent adoption. States have varying laws on sperm donor rights and responsibilities, the legality of surrogate motherhood contracts, recognition of same-sex marriages or civil unions, the need for court-approved adoptions, and whether second parent adoptions are available.
Because there are no reporting requirements by fertility clinics and sperm banks or any identifiers on birth certificates to calculate the number of children who are the product of home-based artificial inseminations, there are no clear statistics on the annual total of children born via sperm and egg donation (or a combination of the two) in the United States.
Commentators estimate the number of people using alternative reproductive technology (ART) to be as low as 5,000 to as high as 60,000 annually. My guess is that the number is at the higher end, if not significantly more, based on the demand for sperm and egg donation, the leaps in science allowing for more successful assisted reproduction rates, infertility issues caused by a delay in starting families (10 to 15 percent of married couples have fertility problems), and the large number of medical and legal entities offering services to facilitate non-traditional means of family planning. And you know something is on the increase when it becomes a huge Hollywood fad -- think "Baby Mama," "The Switch," "The Back Up Plan," and "The Kids Are Alright." (full disclosure -- I have an ART child).
One would think given this increase that there would be legal uniformity as to parental and financial rights and responsibilities. In fact, state legislatures have mostly punted this hot-button issue, declining to readdress the definition of parentage in recent years and instead allowing their judicial systems to render inconsistent verdicts. However, some scholars have begun to take note. For example, in March 2011, the American University Washington College of Law is hosting a conference entitled "The New Illegitimacy: Revisiting Why Parentage Should Not Depend On Marriage."
The inconsistencies create an enormous amount of uncertainty ranging from inheritance rights to child support and visitation. Additionally, there has been an increase in the questionable practice of commercially contracting with foreign surrogate mothers in countries such as India. And what if, for example, a family undergoes alternative family planning in one state but then seeks dissolution of their marriage or union in another that has conflicting definitions of parentage?
And just because one State supports one non-traditional parentage does not necessarily mean that it tolerates another. For example, in Washington, D.C., surrogacy is a felony. On the flip side, in 2010, it became the first jurisdiction to confer the status of legal parent on both lesbian mothers who plan a child using donor insemination, rendering second parent adoption unnecessary.
Some States even have conflicting rules relative to egg and sperm donation because some define genetic mothers as the legal mother but deem a married man the parent of a child conceived from an anonymous sperm donor. In other words, under this scenario, if a married couple used a donor egg and a donor sperm using a surrogate, then the anonymous woman who provided the donor egg is considered the legal mother, but the husband is considered the legal father.
Is your head spinning yet?
A sample of notable state laws and judicial rulings in the past few years reflect how unsettled, inconsistent and controversial the question of parentage is:
Additionally, many cases differentiate between anonymous and known donors. But further muddying the waters is the fact that since 2005, many sperm banks offer "ID consent" donors, who have agreed to have their identities released to any resultant offspring when they reach maturity. Banks that handle egg donors have not yet done so, but given the trends one can foresee that possibility. Adding yet another wrinkle is the fact that Donor Sibling Registries are now available -- think about how, for example, that might affect sibling rights to inheritances. Given the existing legal confusion, one can easily imagine future litigation on these points as well without uniform guidance.
The Uniform Parentage Act, last revised in 2002, is a model statute that was created by the National Conference of Commissioners on Uniform State Laws to serve as a guide for drafting family legislation. It recognizes that as many as five adults can be involved in the production of a single child, and adopted a functional family definition as opposed to one dominated by genetics. With regard to assisted conception, it encourages that States:
Unfortunately, only nine states have adopted versions of the 2002 Act, and for those who did, half have limited the parental rights to opposite sex married couples or declined to include the provisions related to surrogacy. Likewise, the Act does not acknowledge same sex couples, instead defining parents as a "man and woman."
My opinion? Whether you like it or not, families created through alternative reproductive methods are on the rise. States must acknowledge this trend and instead of seeking to prevent their use should enact the following legislation: