Family Law Quarterly
Volume 49, No. 1 (Spring 2015)
Symposium on Assisted Reproductive Technology and Family Law
Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.
The ART of Informed Consent: Assessing Patient Perceptions, Behaviors, and Lived Experience of IVF and Embryo Disposition Informed Consent Processes
Jody Lynee Madeira
Much research has questioned the efficacy of informed consent. This empirical research study questions assumptions about patients’ perceptions of informed consent processes and documents. It provides a more nuanced picture that suggests that informed consent is a more successful project than previously thought. Based on qualitative interviews with 130 IVF patients and 90 fertility care providers as well as 260 online patient surveys, this study suggests that most patients have surprisingly positive consent behaviors with respect to informed consent documents and conversations, including reading forms, reading forms closely, and finding forms comprehensible. This article concludes by discussing the legal implications of patients’ and providers’ perceptions, and looks towards a future where informed consent will be supported by new technologies.
Abortion Clauses in Surrogacy Contracts: Insights from a Case Study
Deborah L. Forman
Surrogacy contracts typically include provisions addressing termination of pregnancy. Often, these provisions vest the intended parents with the right to decide whether to terminate the pregnancy in the event of birth defects or for other reasons. In March 2013, CNN reported that a woman acting as a gestational surrogate had refused to terminate a pregnancy at the intended parents’ request, prompting a legal battle. This case presents an opportunity to explore the legal, ethical and practical issues raised by termination provisions. The article analyzes the doctrinal and other barriers to enforceability of such provisions. It then provides recommendations for various ART stakeholders—lawyers, physicians, mental health professionals and agencies—for how to handle this difficult issue.
Race Sorting in Family Formation
Our laws afford enormous freedom not only to parents, but also to the intermediaries—adoption agencies, social workers, sperm banks, and egg vendors—that bring them together with (future) children. These middlemen routinely exercise this discretion to emphasize race in matching parents to the same-race gamete donors or adoptive children they tend to prefer. This symposium essay provides a conceptual framework to govern the use of race in decisions about family formation. This spectrum of salience-varying ways to manage racial information ranges from those that lay the greatest emphasis on race to those that soften or altogether exclude its expression. The essay locates the operation of these different approaches in the law and practice of adoption and assisted reproduction. That race tends to reproduce itself within the family makes these unique contexts from which to ask what sort of racial self-understandings our multiracial democracy should seek to embody.
Multi-Party Parenting in Genetics and Law: A View from Succession
In early 2014, two independent advances introduced the possibility of creating children with more than two genetic and legal parents. Researchers sought permission to proceed with human trials using “three-parent IVF,” a technique that would produce a child with three genetic parents. Concurrently, a newly enacted California law permits judges to recognize more than two parents when failure to do so would be a detriment to the child. Multi-parent families raise numerous questions about the well-being of the affected individuals but future impacts are rarely discussed. This article considers multi-party parenting through the lens of succession, the rights of heirs to succeed to property of a decedent who dies without a will. Using intestate models that pay homage to relationships forged by blood, marriage and adoption, this article assesses whether multi-parent families could or should be captured by existing schemes, governed by newly tailored schemes, or dismissed from succession altogether.
Between the Binaries: Exploring the Legal Boundaries of Nonanonymous Sperm Donation
Susan Frelich Appleton
Contemporary practices in alternative insemination are challenging binaries—the either/or categories—on which family law has long relied. In particular, when unmarried women use the sperm of known donors, often bypassing physician assistance and medical regulation, they defy traditional rules that distinguish parents from nonparents and sexual conception from nonsexual conception.
Several highly publicized recent cases showcase the shortcomings of family law’s conventional approach. These cases present contests over a known donor’s visitation rights and support obligations as well as claims advanced by the “free sperm movement.” This article analyzes these cases and responds to the problems they raise by considering the promise of three less categorical and more flexible solutions: an intermediate status lying between “parent” and “donor,” contractual relationships, and analysis centered on the child’s interests.
Blood and Water in a Post-Coital World
Kimberly M. Mutcherson
Families and kin are an essential component of a person’s lived experience as they create, shape, nourish, and educate us. However, kinship is contested territory. For decades, anthropologists have been constructing and deconstructing theories of kinship. The law in a similar vein, has had to re-evaluate its notion of what it means to be in a familial relationship, and which of those relationships deserve to be called family. This article looks at the anthropological and legal terms used to describe kinship; the relationship between law and blood kinship and how the law favors blood over other ties; and explores ways in which assisted reproduction complicates notions of blood relationship, including through gestational surrogacy. The author concludes with some ways of reconsidering baseline assumptions about the meaning and importance of relatedness as family law continues to find ways to embrace new family structures.
Publication Date: June 2015