- Learn about governance of stored genetic material.
- Learn who tends to be favored in a dispute.
One in five couples seeking a divorce has an assisted reproduction issue. The question is not whether you will represent a client with such issues, but whether you will know it.
Millions of Americans suffer from infertility, which is generally defined as having unprotected sex for at least one year without a resulting pregnancy. Medical advances are occurring on an annual basis, creating a steady stream of new and unique legal issues. The medical procedures involve human reproduction––the creation and maintenance of children, potential children, and the families of which they are part. 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.
To stay proficient and successful in the practice of family law, every family lawyer must have at least a basic awareness of and proficiency in what is known as assisted reproductive technology (ART) law. The procedures of ART include any medical or scientific intervention to cause a pregnancy through means other than sexual intercourse. Following are nine things every family lawyer should know about ART and ART law.
1. Every family lawyer should know: As of 2002, 7.3 million American women and their partners (approximately 12 percent) were experiencing infertility. (Center for Disease Control National Survey of Family Growth, 2002.) That number is currently estimated to have grown to 8.1 million women and partners. Causes of infertility are thought to include women’s deferral of pregnancy to a later stage of life and environmental factors, among others. According to one fertility physician, currently 20 percent of couples are struggling with infertility at any given time.
►Why a family lawyer needs to know this: Of the 8.1 million people suffering from infertility, a vast number of them are participating in medical procedures—to remove and store their sperm and eggs and create and store their embryos. In addition, they are often participating in third-party reproduction in which they enlist the services of sperm and/or egg donors and/or surrogates to create children with potentially fragmented connections to their genetic/gestational/intended parents. There are simply too many infertile couples participating in medical procedures to expect that any family lawyer will remain unaffected by, or can remain blithely unaware of, issues related to ART.
2. Every family lawyer should know: Infertility is a profoundly private and personal matter. A woman experiencing infertility and trying to have her genetic child through in vitro fertilization (IVF), using her egg (outside the womb in a petri dish) and her husband’s sperm, recently related her fertility experience. She explained that after numerous unsuccessful attempts at IVF with her own egg, her physician suggested she use an egg donor. She talked about how infertility created in her a strong sense of “defectiveness” and inadequacy. She stated that it was a very shameful and isolating experience. She said that it took her time to grieve over her loss of genetic connection to her child before she could psychologically and emotionally “evolve” to the use of an egg donor to have her child. Most importantly, she revealed that when she did become pregnant with a child using an egg donor, neither she nor her husband ever told their parents or any friends or relatives about the egg donor. Although family and friends knew they were undergoing fertility treatment with IVF, neither she nor her husband wanted their relatives to receive the child as anything less than a full genetic member of the family. They feared misunderstanding and prejudice toward their child from their own family members. Other parents have explained that they could not reveal either their IVF or egg donor programs to their families due to conservative religious and moral reasons. The very experience of infertility makes some unwilling and unable to talk about it with family and friends, let alone strangers.
►Why a family lawyer needs to know this: Your divorce clients will not necessarily tell you about their infertility issues unless you specifically ask them. Your clients cannot be expected to know that unrevealed fertility procedures and fragmented parental connections may have an unforeseen impact on their divorce or other family law proceeding. If they don’t know it is relevant, they may very well not tell you about it at all. It is incumbent upon you to specifically inquire and obtain all information about the client’s fertility history and possible issues in connection with their pending family law proceeding. At a minimum, every family law questionnaire should contain a single, simple question regarding a prospective client’s fertility history: Have you or your partner, if any, ever been diagnosed as infertile, treated for infertility, or used or participated in assisted reproduction?
If the client answers yes, the attorney should have a separate supplemental fertility questionnaire for the client to complete, specifically inquiring about fertility history and all facts relevant to stored genetic material; signed consents purporting to govern its storage, use, and disposition; and any other possible evidence that may be relevant in the pending divorce proceeding.
3. Every family lawyer should know: Stored sperm and embryos have been characterized as “property” (or quasi-property) for purposes of ownership, control, transfer, and bailment. A line of cases has developed that implicates and has tried to define the nature of stored genetic material. Generally speaking, stored sperm has been treated as property. Hecht v. Superior Court of California, 16 Cal. App. 4th 836 (1993), Hall v. Fertility Institute of New Orleans, 647 So. 2d 1348 (La. 1994).
On the other hand, embryos have not uniformly been treated as property, but neither have they been granted the status of “persons.” York v. Jones, 717 F. Supp. 421 (E.D. Va. 1989); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998); Jeter v. Mayo Clinic Arizona, 121 P.3d 1256 (Ariz. 2005). Regardless of which treatment these various forms of stored genetic material are given, courts have held that stored genetic material is subject, within certain limitations, to the ownership, control, and disposition of its contributors.
To date, only the cryopreservation of sperm and embryos has been reliable and commonplace in assisted reproduction. Very soon, successful cryopreservation and the later thawing and use of eggs also will be commonplace. Disputes over the eggs will undoubtedly arise and join the developing body of stare decisis over ownership and control of genetic material.
►Why a family lawyer needs to know this: If one out of every five of your divorce clients has experienced infertility, you certainly will have to address the use and disposition of stored genetic material. Every family lawyer should know that the courts have not been applying the principles applicable to an award of custody of children to stored genetic material. A capable family lawyer will also know that there is alternative precedent that various state courts have applied to determine the use of stored embryos for (1) “scrupulously” following the parties’ prior written agreement, (2) balancing the interests of the parties in procreating or not procreating, and (3) enforcing the parties’ prior written agreement, subject to either party’s right to change his or her mind before the actual use or disposition of the genetic material. Specific provisions addressing the future creation and storage of genetic material may be desirable in certain relevant antenuptial agreements; certainly the future use and disposition of already stored genetic material should be negotiated and made an express part of every divorce judgment. These issues are relevant both before and after a marriage is created, and a savvy practitioner will know when and how to raise and appropriately resolve genetic material use and disposition issues.
4. Every family lawyer should know: When a couple separates and disagrees over the use of their stored genetic material, the right of the party not wanting to subsequently procreate generally prevails. A number of cases have addressed whether, upon separation and divorce after a couple has created embryos for procreation, either parent has superior rights to the embryos and their use and disposition. The courts have, for a variety of reasons, held to date that in all cases the right of the intended parent who does not want to procreate supersedes the right of the parent who wants to procreate. A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000); J.B. v. M.B. and C.C., 783 A.2d 707 (N.J. 2001); In re the Marriage of Witten, 672 N.W.2d 768 (Iowa 2003); Litowitz v. Litowitz, 48 P.3d 261 (Wash. 2002), cert. denied, 537 U.S. 1191 (U.S. 2003)
►Why a family lawyer needs to know this: If the agreements allow the use of the embryos by one party or the other without both parties’ consent, the unconsenting party may believe that he or she has no recourse to prevent unwanted procreation. Couples undergoing fertility treatment come to rely almost exclusively on the expertise and opinion of their attending fertility physician. The staff at the fertility clinic often exaggerates the nature and effect of the various consents and disposition agreements that patients sign as part of their fertility treatment. It is not surprising that the parties to agreements often believe that the terms of those agreements are dispositive and cannot be changed. It is imperative that such parties be advised as early as possible in any divorce action that that is not the case and that they retain a degree of self-determination to avoid unwanted procreation if that is their preference.
5. Every family lawyer should know: Patients undergoing fertility treatments sign many consents, authorizations, and disposition agreements at fertility clinics or other storage facilities that purport to govern their rights in the genetic material created and stored. The cases summarized in the foregoing paragraphs often revolved around the existence and/or terms of the agreements that the litigants signed at their respective fertility clinics at the time of the creation and storage of their genetic material. In Kass, such an agreement was determinative; in Davis, the court implemented a balancing test because such an agreement did not exist; in J.B., the court stated it would enforce the parties’ agreement, but only subject to either party’s right to change his or her mind.
►Why a family lawyer needs to know this: The terms and completeness of disposition agreements at various fertility clinics vary widely. Some have no agreements at all. Some have only cursory agreements that do not expressly deal with divorce or other family law issues. Some are very thorough and purport to govern all circumstances, even if either party subsequently has a change of mind. There was an express agreement in A.Z. Agreements on file at the fertility clinic allowed the wife sole discretion as to use of the embryos after the divorce. (Of course, the husband signed the forms “in blank,” and the wife later filled them in with this authorization!) But for the inadvertent notification of the husband by his health insurance company that his wife was incurring medical expenses in her attempt to use the stored embryos to create a pregnancy, the husband potentially would have been the unwilling father—and child support obligor—of an unintended child (and a very unhappy client).
It is imperative that the existence and exact terms and scope of all such agreements be determined as early as possible in every divorce proceeding. Notice of the pending divorce proceeding should be given to every relevant fertility clinic and/or storage facility to prevent them from performing fertility procedures that have become unwanted by one party or the other. Unless such information is ascertained, the client appropriately advised about his or her options, and the relevant facilities notified, the unexpected arrival of another unintended child to deal with in a divorce action might result in a malpractice action against the party’s divorce lawyer.
6. Every family lawyer should know: Intent is a strong influencing factor in virtually all judicial decisions involving assisted reproduction. The medical practices in and legal issues that are raised by ART have surpassed the ability of legislators to keep pace. Artificial insemination of human beings was in use by the late 1800s. It was not until the 1980s that most states adopted statutes to clearly and administratively establish parentage for the intended parents using that form of ART and the resulting children. It took the law in that case about 100 years to catch up with medical practices in ART. As a result, many of the legal issues that arise in connection with ART procedures now have to be resolved under the auspices of statutes that were never intended to govern such procedures. In many states, there is simply no law that was intended to apply to egg donation and/or surrogacy, for example. As a result, the courts must frame their decisions with very little statutory guidance. They must come up with another standard, and this sometimes results in unusual and unexpected outcomes. Jacob v. Schultz-Jacob v. Frampton, 923 A.2d 473 (Pa. Super. 2007); LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. 2000).
►Why a family lawyer needs to know this: With no clear statutory direction, the clear tendency of the courts has been to implement the intent of the parties. Thus, as long as existing statutes do not clearly apply, it pays to be creative. In all family law matters involving ART, discerning that intent and then finding creative ways to apply existing law to effect it may be the best way to serve your client. Thus, a child may end up with three parents with custodial rights and/or three parents with child support obligations.
7. Every family lawyer should know: Despite the lack of statutory guidelines in many ART matters, where there is an existing statute, courts often will strictly apply the statute. The most common existing statutes regarding ART are state statutes governing the determination of parentage when a sperm donor is used. These statutes come in a variety of forms. Some, such as Minnesota Stat. § 257.56, state that the donor is not the legal father of the resulting child only if (1) he donates to a married couple, (2) under the supervision of a licensed physician, (3) with the written consent of a wife donor’s husband, joined by the wife. Others, such as Kansas Stat. § Ann. 38-1114(f ), state that a donor is not the legal father of the resulting child unless that intent is agreed to in writing between the donor and the woman.
►Why a family lawyer needs to know this: There are currently many risks associated with ART under our often-outdated statutory framework. Statistics show that over half of the persons using unknown sperm donors are single women or lesbian partners. Use of sperm donors in a way that doesn’t comply with the specific governing statute can result in the donor’s retaining an unintended, legitimate claim as the child’s father, as in LaChapelle, supra. In the alternative, use of sperm donors in strict compliance with the governing donor insemination statute can result in the unintended loss of the donor’s parental rights, as in Jacob, supra.
There are few states with any laws governing egg donors. In the absence of statutes that parallel the sperm donor statutes, it is possible, if not likely, that the egg donors retain uncauterized parental presumptions that could act as a sufficient legal platform for future maternity litigation under the right circumstances. Notwithstanding the foregoing, most fertility clinics represent to their patients that the egg donor effectively relinquishes her parental rights in the consent forms she signs at the clinic in connection with the procedure. This may not be the case, but patients happily accept this advice and take no steps to terminate the donor’s rights to the resulting child.
The only thing standing in the way of unexpected maternity suits at this time is the overwhelmingly anonymous nature of the egg donor process. However, a strong movement is afoot to pierce the veil of anonymity for egg donors. If that happens, then these residual parental rights could become problematic. It behooves every family law practitioner who deals with paternity or maternity issues to be well aware of the scope and impact of all existing ART statutes for the purpose of giving accurate advice in this regard.
8. Every family lawyer should know: Leaving unintended parental rights in donors (which are sometimes used) could potentially lead to surprising outcomes. There has been only one case of an anonymous egg donor asserting her parental rights through litigation. This occurred in the case of a custody contest in Pennsylvania and Ohio between a single man and the gestational surrogate who gave birth to his triplets. J.F. v. D.B., 897 A.2d 1261 (Pa. Super. Ct. 2006), and J.F. v. D.B., 116 Ohio St. 363, 879 N.E.2d 740 (Ohio 2007). In these companion cases involving the same parties in different states, the gestational surrogate contested custody of the children, and the genetic father brought the egg donor into the suit in Ohio because genetic relationship determines maternity in surrogacy cases in Ohio. The father was hoping that, if the court did not award him custody, it would award custody to the genetically related donor, who would then grant him custody by stipulation.
►Why a family lawyer needs to know this: When interacting with any infertile couple in a divorce or other family law setting, the lawyer must be alert to all possible issues that may relate to the client’s legal well-being. If a lawyer’s initial inquiries reveal the existence of children born through ART, particularly those born not in compliance with existing ART statutes or those born without any specific statutory governance, the lawyer must be able to advise the client of potential risks that may be unknown to the client.
9. Every family lawyer should know: There are potential estate planning and probate issues for every client who has (or may have) children through ART. If a client has stored genetic material from ART procedures, two questions will arise: (1) What should happen to that material in any divorce or other family law proceeding? (2)What will be the disposition of the material upon the client’s death? If stored genetic material is awarded to the client in a divorce proceeding, there are potential issues related to the use of the client’s stored genetic material after his or her death and the status of the resulting children as potential heirs of his or her estate. Estate of Kolacy, 753 A.2d 1257 (N.J. Mar. 31, 2000); Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (Mass. Jan. 2, 2002); Gillett-Netting v. Barnhart, 371 F.3d 593 (Ariz. June 9, 2004), and others.
►Why a family lawyer needs to know this: Once the matter is over, whether the family law attorney assists the client with estate planning issues or refers the matter to an experienced estate planning lawyer, issues such as those raised by the foregoing cases should be discussed and appropriate estate-planning documents drafted.
This article from Family Advocate is definitely worth reading because family law, particularly divorce law, is intimately intertwined with ART law. A family lawyer who understands how genetic material is created and stored, what consents are signed and in place, and the various other aspects of ART law will be more adept at inquiring about, identifying, and successfully resolving unexpected ART issues in any divorce case.
Published in Family Advocate, Vol. 34, No. 2, (Fall 2011) p. 6–10. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.