In the Age of Alternative Reproduction, Who Are a Child's Parents?

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:

• In Pennsylvania, the trial and appellate courts initially forced a sperm donor to pay child support even though the mother was married to someone else at the time of insemination, and he had a contract that was supposed to relieve him of child support obligations. The State's highest court overturned the ruling, stating that the decision in line with the lower courts would undermine the legal status of sperm donors, including anonymous donors at sperm banks, and would force women to seek sperm via sperm banks rather than from men in their acquaintanceship that they admire.

• In Michigan, a married couple with fertility issues contracted with a surrogate mother, who had acted as a surrogate for three other children previously for other women. The resultant twins were produced by fertilizing an egg and a sperm from anonymous donors, so no party shared any DNA with the children. Upon hearing that the wife had a psychological disorder, the surrogate decided to object to legal transfer at the required guardianship hearing. The court sided with the surrogate because Michigan strongly opposes surrogacy contracts and, in fact, deems such contracts as a crime punishable by up to five years in prison as well as fines.

• In California, as well as some other states, if a person or couple is assisted by a licensed medical professional (even if the insemination is done at home), then the sperm donor automatically loses all claim to the child, and if the mother is married, the husband automatically becomes the legal father (assuming he and the mother sign a consent form to that end).  But if you do not meet the above criteria, then the donor may assert claims.

• To the contrary, in Florida, the distinction as to where insemination occurs is irrelevant -- donors waive parental rights and responsibilities. Florida also permits surrogate agreements. But before you believe that Florida is at the forefront of tolerance on this matter, note that it does not allow same-sex adoptions.

• Now, contrast that with New York, where contracts regarding sperm donation between a couple and a known sperm donor are generally unenforceable, and the court will only look at the best interests of the child in determining the rights and duties of the donor as opposed to the parties' intent.  More recently, although the state's highest court granted "legal parent" status to a non-biological mother to a child born after the couple had entered into a civil union in Vermont, the ruling does not extend to same-sex couples who fail to enter into such unions or same-sex marriage, both of which are unavailable in New York. However, New York's decision to honor Vermont's laws does not mean that other States will do so. Yet unlike Florida, New York allows second parent adoptions.

• In Indiana, the Court of Appeals reversed a trial court's ruling that the legal mother of a child was a non-related surrogate. In that case, a married couple enlisted the wife's sister to carry her child as a gestational surrogate. The court remanded the case back to the trial court with instructions to conduct an evidentiary hearing to determine motherhood based on biological, not gestational relationship. Unlike Michigan, the fact that Indiana law does not recognize the validity of surrogacy agreements was basically ignored.

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:

• Authorize gestational surrogacy agreements as valid contracts requiring court approval similar to adoptions.

• No longer require that at least one of a child's intended parents be genetically related.

• Recognize that egg and sperm donors are not the legal parents of a child under any circumstances.

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:

• Establish a method to report the offspring produced as a result of ART;

• Uniformly deem enforceable contracts between known sperm and egg donors and recipients and provide guidelines regarding drafting of same;

• Uniformly deem enforceable surrogacy contracts and establish guidelines for judicial approval;

• Create guidelines and clarify parental and sibling legal rights relative to ID Consent donors and Sibling Registries; and

• Adopt a version of the 2002 Uniform Parentage Act that includes a broader definition of parentage to include same sex couples.

 

Comments

[Gift ov life]

06:52 AM on 02/01/2011

To answer the question posed - a child's parents are for me those that the child calls "mommy" and or "daddy." However, its a complicated world we live in and I would argue that from each person, race, religion, colour and creed, you will get a different answer.
The Rabbi will tell you that the woman that gives birth is the "parent." Whether the sperm is or donated egg is of Jewish origin is irrelevant. The gay couple whose child is born of an egg donor and a surrogate mother will tell you that they are both equally "mommy" and "daddy." The Chinese girl in an orphanage will tell you that her caregiver is both "mommy" and "daddy."
Wake up! We live with permeatations, variables, grey areas and crooked lines. And for all intensive purposes genetics, as it relates to being a parent, is overrated. Just ask anyone of our recipients to egg donation from www.giftovlife.com egg donation agency.
In South Africa our democracy ensures that the "factual birth certificate" details the parents as just that - parents, irrespective of whether an egg donor was used for conception.
Thank G_D for these man made decisions, freedom of choice and the magnificent science of artificial reproduction. I would not be a parent to two babies were it not for the brilliance of IVF. I even chose the sex of my daughter via PGD testing.

[nikanj]

11:13 AM on 02/01/2011

Where is the 'freedom of choice' for the babies born with no
idea whatsoever of their genetic inheritance ? It's more important
than you think, there is such a thing as 'genetic memory'.

I would be more interested in asking the children of your
recipients if 'genetics is overrated', rather than the recipients themselves.

[Thankfulpeach]

09:47 AM on 01/31/2011

Every American should be ensured the right of a factual original birth certificat­e, with the names of the people who actually provide the DNA for that individual­. Assisted reproducti­on and adoption are both businesses in human lives. The lives created through these "man-made" decisions deserve the same rights as every other citizen to KNOW & OWN thier own genealogic­al, DNA & birth identity. Even if a child is conceived through donor eggs/sperm and a surrogate, they still deserve the identity rights of who they came from. Our society needs to think twice about the human rights of these individual­s before enacting laws and allowing this to continue.
Only six US states have passed legislatio­n strongly supported by The Child Welfare League of American restoring the right of adult adoptees to access their original birth certificat­e. Laws should be in place to ENSURE every American a FACTUAL birth certificat­e. Amended birth certificat­es are falsified and unfactual based on a legal contract. Human rights should never be trumped through a legal contract, but that is exactly what adoption & assisted reproducti­on is allowing.

[John Howard]

05:10 PM on 02/04/2011

I agree, I think there should be mandatory testing at birth to ensure that the people listed on the birth certificate are the actual progenitors. There should be separate guardianship documents that assign legal parents, which usually would be the same people but not necessarily. And let's forbid intentionally creating a person with unmarried progenitors, shut down the whole industry. It is a violation of human rights and a waste of money and energy, and there is no need to create a child. There is no right to intentionally create a human being, it is slavery!

[Thankfulpeach]

09:40 AM on 01/31/2011

Every American should be ensured the right of a factual original birth certificate, with the names of the people who actually provide the DNA for that individual. Assisted reproduction and adoption are both businesses in human lives. The lives created through these "man-made" decisions deserve the same rights as every other citizen to KNOW & OWN thier own genealogical, DNA & birth identity. Even if a child is conceived through donor eggs/sperm and a surrogate, they still deserve the identity rights of who they came from. Our society needs to think twice about the human rights of these individuals before enacting laws and allowing this to continue.
Only six US states have passed legislation strongly supported by The Child Welfare League of American restoring the right of adult adoptees to access their original birth certificate. Laws should be in place to ENSURE every American a FACTUAL birth certificate. Amended birth certificates are falsified and unfactual based on a legal contract. Human rights should never be trumped through a legal contract, but that is exactly what adoption & assisted reproduction is allowing.
www.PeachNeitherHereNorThere.blogspot.com

[megs123]

09:34 AM on 01/31/2011

Let's please seriously consider giving rights to these deserving parents. I work in a world where I see an astounding number of unplanned/ unintended conceptions and births. There of course exceptions, but many of these young mothers (and sometimes fathers) are not capable of parenting. Let's appreciate the difference in our society. Important discussion!

[John Howard]

05:06 PM on 02/04/2011

Nah, let's just help young mothers avoid pre-marital pregnancy and help them raise their children and completely forbid people from making children any other way than marital sex. Where do people get the idea that they have a right to create a child any other way? What a waste of money and resources, and insult to human dignity and equality.

[Allyson LaGreco]

05:01 PM on 01/30/2011

The parent of a child should not necessarily be defined by genetic relation or surrogacy but the people who want to bring this child into the world and went through the effort to do so. In my own extended family, there's a person raised by a step father, fast forward 20+ years later the biological father decides he wanted part of this persons life, which made this person bristle. if you ask this person who's your father their response is this, my (step) dad (second parent adoption), he was the one that raised me, loved me and took care of me and was there through everything. Isn't that the true definition of a parent, whether its same sex or opposite sex, biologically related or surrogate? Parents should be defined as the people that love, care and provide for the child brought into the world. In this day and age when non traditional families are on the rise why would we not change to protect the next generations and start to take steps towards more consistent guidelines as to what defines parentage.

[ninetailedfox]

02:43 PM on 01/30/2011

Im surprised some conservative christian doesnt think this is adultery, because in some weird way, it is.

[John Howard]

05:14 PM on 02/04/2011

I certainly think it is adultery, because it most certainly is! And it indeed was ruled to be adultery in the fifties, and for a long time IVF was only allowed to married couples using their own genes (that's called "homologous IVF" as opposed to heterologous IVF). I suppose I'm Christian, but I could be Muslim or Buddhist or Hindu or Jewish, or totally secular. Adultery is a secular civil law, it isn't just a Christian thing.

[VA Jill]

02:42 PM on 01/30/2011

Your parents are, or should be, the people who raised you. There are some instances, for instance when a child is fraudulently taken from its parents, as has happened a couple of times recently in Tennessee, that the birthparents definitely have rights. As far as surrogacy, it should be legal and contractual, period, and states should not have so many different laws. As it stands now a couple could go to another state and either their parentage is legal or not strictly by that state's laws. That's crazy. Of course the far right would limit all of the possibilities for other than "one couple" reproduction, but I don't notice them rushing to adopt in droves.

[ninetailedfox]

02:38 PM on 01/30/2011

I dont mean to be rude, but people are popping out children like rabbits. On top of that, CPS can take your children for the weirdest of reasons. I dont see why people want to keep squeezing out children with reckless abandon, its irresponsible and selfish. As for who the kids parents are, its whoever raises the child, however because of that, I think Child protective services needs to back off, I have my reasons for bringing up CPS, my ex landlord almost got his daughter taken away for "being gay" when all she did was play dress up with daddy. I think things are getting out of hand in America, and I think that some population control might be in order.

[Lisa Shields]

01:11 PM on 01/30/2011

We are facing the consequences of technology that has outstripped our willingness to deal with the ethics of the outcome. Since Baby M exploded on the scene, few states have been willing to even touch or explore the legality of and consequences of IVF, surrogate parenting, and the resulting issues.

We've had cases where "parents" who contracted for surrogacy abandoned the baby because it wasn't "perfect". Supposedly, we are not allowed to "sell" babies, or body parts...but the whole baby tech industry falls under a huge gray area. Fifty separate states with separate regulations is an invitation to chaos...which is what we now have.

I appreciate that the infertile wish for children...but we need to be grownups before we can be parents. That concept is not in evidence. Could we PLEASE deal with something before it becomes a huge legal issue? We warn women to give up anything that might damage their children before they become pregnant...then LOAD up egg donors with artificial hormones to assure that they produce viable eggs for IVF. We then provide the surrogate, or mother to be with MORE hormones to make sure that pregnancy ensues.

Where is the logic here, exactly?
We need hard and fast, consistent rules...not suggestions.
Crossing a state line should not change parental status.
Ethics...not something we often think about...but something we NEED...to survive.

[John Howard]

05:22 PM on 02/04/2011

We need a moratorium, and then we need to completely eliminate this whole field, shut down all the sperm banks and surrogacy lawyers and unsrupulous doctors, and stand up for the rights of kids and preserve natural procreation rights. At a time when we are starting to understand how screwed we are from industrial farming and trying to restore sustainable organic farming, we should not be making the same mistake with human procreation. Keep it natural, and then devote ourselves to actual medicine and care for actual people, instead of trying to make perfect babies according to design.

[C C Henderson Swett]

12:33 PM on 01/30/2011

Unfortunately, one is not "donating" eggs - but procreating with strangers, sometimes for personal profit.
Every moral/religious belief system humans have devised would say this is wrong. Yet, somehow the technology has been painted as altruistic.
Stranger reproduction results in a child being born without his or her genetic parents ever being in the same room together. The child who grows to be an adult, is without grandparents, siblings, or cousins that share his DNA, outside of having kin and belonging. In short this person lives outside the human experience.

Here are links to consider :

http://anonymousus.org/about/index.php
‎"real and honest opinions about reproductive technologies and family fragmentation"

http://www.eggsploitation.com/
"The infertility industry in the United States has grown to a multi-billion dollar business. What is its main commodity? Human eggs."

http://www.mercatornet.com/articles/view/the_true_cost_of_egg_donation/%C2%A0%C2%A0%C2%A0%C2%A0
"But this rosy picture of smiling babies and happy endings is one of the cruelest deceptions in egg donor recruitment. Agencies and fertility centers never give prospective donors a realistic picture of the human costs accompanying egg retrieval, fertilization, cultivation, storage, and implantation; at best they describe the process...es in euphemisms, downplaying the loss of life. "

[nikanj]

03:09 PM on 01/30/2011

I have always wondered why selling your body for sex is illegal
but selling genetic material is not, considering that selling
genetic material is literally selling a child's future.

Allow me to be your first fan.

[antaeus]

05:12 PM on 01/30/2011

That's the kind of searing paradox that makes people's heads explode--as it should.

[r81801]

09:57 AM on 01/30/2011

It seems many adopted children have ongoing longings to meet and know their bioparents. Some seem to have big psychological issues about this. How will these children with 5 people involved fare? I hope adults choosing this complexity greatly consider the impacts on the children involved.

[Alison Adams]

12:19 AM on 01/30/2011

As an experienced surrogate now entering my third surrogacy journey, I agree with the overall tone of this article.

And though my egg is used, I am not the mother. Biologically the child is related to me, yes, but otherwise? Nope. I am not the parent. The parents are the couple waiting for that child to be born, the couple that go through a lot of hoops (legal) and eventually take that child home once I give birth. My family is completed, but I didn't feel "done." And witnessing numerous friends go through infertility, miscarriages, stillbirths, and so on? I felt compelled to help people, to have what I had rather easily and what I never take for granted.

But the various laws surrounding surrogacy, it makes it a headache at times. Trying to understand the legal terms, even for some attorneys, is difficult and frustrating.

And that Michigan couple that contracted with the MI surrogate who had twins - that case was mishandled from the start. BOTH parties (surrogate and intended parents) didn't take the appropriate steps to handle the surrogacy correctly. It irritates me to no end, I wish more people knew the entire story.

[ninetailedfox]

02:48 PM on 01/30/2011

being a surrogate is not an issue to be taken lightly, Its not something I would do mainly because there are too many emotional attachments involved, also as youve mentioned the legal beaucracies involved are complicated.

[AllyCat7]

11:16 PM on 01/29/2011

OMG that baby is SO cute I could eat him!

[kaydeechio]

10:47 PM on 01/29/2011

At least with egg donation, there is a lot of screening that goes on to decrease the likelihood that a child born to the recipient will have a genetic predisposition for major diseases. (CF, for example) I was in the process of going through this screening before I got pregnant. In my opinion, the donors and surrogates are simply providing a service to the real parents. If I would have donated my eggs, the recipient would be the parent, not me.

[GCurry]

09:56 PM on 01/29/2011

One of my step-daughters (SD) had 2 kids, via baby-daddy #1 (BD1) and baby-daddy #2 (BD2).

I am the full-time caretaker of one of those kids, a victim of drugs and irresponsibility. I have had the child, now almost 8, for longer than either his bio-F or bio-M parents. He is ADHD. Neither of his bio-parents contribute anything to his care.

SD is on-again, off-again with BD2, and the second chid of SD, a girl, is nearly 2. I dread that I'll get her also.

BD1, in the meantime, is working on his 4th child, all by different mothers. This will be the 4th also by the newest baby-mommy, all hers being by different baby-daddies also. BD1 doesn't support any of his bio-kids, although he talks incessantly about his "parental rights."

As far as I am concerned, the people who RAISE the child are his parents. His bio-parents contribute of course, but the commitment from those who actually bother to raise the child is much greater than the egg/sperm donor, even birth mother.

The victims are the kids, who are treated like accessories, or leverage, or both.

I hope this area is sorted out, but from my vantage, I have trouble feeling confident of the future of this country.

[ninetailedfox]

02:51 PM on 01/30/2011

Agreed. I will say this however, some cases are very complicated. Ive had friends who had their children taken from them by CPS, I know these people really well and I know that it wasnt their fault. In some cases, I believe that even if the children are not with their parents, on some level there is an unbreakable bond between parent and child that no amount of beauracracy can ever take away.