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July 01, 2009

Assisted Reproduction: Preserving Families and Protecting the Rights of Individuals

by Bruce L. Wilder

People wanting to form families using assisted reproduction technology (ART) do so for a number of reasons, including infertility, aversion to sexual intercourse, avoidance of unprotected sexual intercourse for fear of disease transmission, or eugenic considerations (a subcategory of which may be avoidance of the risks of genetically transmitted disease or of genetically determined traits deemed to be undesirable). In the case of gestational ART, prohibitive risk of pregnancy and/or delivery, coupled with a desire to perpetuate one’s own genetic legacy, is often the primary consideration. For the infertile, a wish to avoid the legal complexities and other inconveniences of the adoption process may be an important factor.

A rapidly changing body of scientific knowledge and technology in the field of assisted reproduction has required the law to develop fair and logical solutions to problems that arise when the rights of individuals clash with traditional notions of what a family is. Indeed, we have been forced to rethink the concept of family, which is so important to social stability and the rearing of children in our society.

When disputes have arisen, with a few exceptions, courts have generally had to apply law, both statutory and case-made, that was developed before the many novel fact situations created by ART were contemplated. As a result, there continues to be a great deal of uncertainty surrounding the rights and responsibilities of individuals involved in assisted reproduction, including the resulting children, who, of course, did not exist at the time decisions about reproduction were made.


In the context of assisted reproduction, the following definitions are generally accepted—and, for the purposes of this article, are—as follows:

“Assisted reproduction” is defined as the achievement of a pregnancy without sexual intercourse.

“Infertility” is defined as inability to achieve a pregnancy that eventually results in a live birth, after one year of unprotected intercourse.

“Donors” are individuals who provide gametes, embryos, or other genetic material (such as enucleated eggs) with the understanding they have relinquished any and all parental or other legal relationships with the resulting offspring. In the case of donated embryos, an embryo is not a donated embryo unless all progenitors have relinquished their legal connection with the resulting offspring.

“Intended parent” is an individual who has manifested an intent to be legally bound as the parent of the resulting child.

“Gestational carrier (surrogate)” is a woman who has agreed to bear a child, either from a transferred embryo, or by artificial insemination, for an intended parent(s), and who has agreed that she will have no parent-child or other legal relationship with the resulting child.

Legal status of the embryo. ” Much has been written about the “legal status” of the embryo, in legislation, case law, and by commentators. Generally, the debate has been dualistic, i.e., whether the embryo is property or potential human life, if not a human being. Whatever an embryo is, it seems to have the peculiar distinction of being something that cannot be the subject of an enforceable contract if it is to be gestated to live birth, but can be if it is to be destroyed. Under Louisiana statute, ( La. Rev. Stat. Ann. § 9:121–133), an embryo that has not implanted is considered a “juridical person,” with certain legal rights.

Determination of Parentage

A number of states have passed legislation designed to delineate the rights of individuals participating in assisted reproduction, and there is considerable variation in the volume and specifics of that legislation. The Uniform Parentage Act (UPA) (1973), 9B U.L.A. 377 et seq. (2001), defined the rights of individuals in sperm donation. Now enacted in nine states, the revised UPA (2002), 9B U.L.A. 4 et seq. (2009 pocket part), broadened considerably the application to ART. Generally, it has been left to the courts to develop law or to provide the impetus for legislation. Not surprisingly, there has been considerable variation in holdings among the different states.

In re Marriage of Buzzanca, 61 Cal. App. 4th 410 (1998), exemplifies perhaps more than any other case, just how far courts have come in addressing the disconnect between new reproduction technology and established law. In Buzzanca , the trial court came to the bizarre conclusion that a child born as the result of a married couple’s efforts to have a child by donor egg, donor sperm, and a gestational carrier, had “no parents.” The appellate court held that both of the divorced couple were the child’s legal parents. At least implicit in the court’s opinion is the concept that both of the couple committed acts that made them legally bound as the child’s parents. In the case at hand, the legally significant acts were their obtaining donor gametes and arranging for in vitro fertilization (IVF) and a gestational carrier. The universal importance of this idea cannot be underestimated. Of course, reasonable minds may differ as to what it takes to establish that individuals are “legally bound” as parents, but the concept encompasses even traditional paths to parentage, e.g., sexual intercourse resulting in the birth of the child, but would seem to relegate a genetic connection between child and putative parent to evidence of sexual intercourse, rather than a fact that is dispositive of parentage with a slew of exceptions created by case-made and statutory law.

Access to ART services

Individuals with HIV infection may face barriers to receiving ART treatment. Under the Americans with Disabilities Act, 104 Stat. 327 (1990), treatment could not be refused because of HIV infection alone. While “sperm-washing” is probably a safe method for men infected with HIV to have children without transmission to the birth mother or the fetus, women infected with HIV still represent a small risk to the fetus/child, and ART services might reasonably be refused on the basis of that risk if the clinic could demonstrate that is has previously refused treatment because of a comparable risk of an equally serious condition in the child.

Sexual orientation cannot be the basis for refusing to provide ART services in California, see North Coast Women’s Care Medical Group, Inc. v. S.C. (Benitez) , 81 Cal. Rptr. 3d 708, and it is unlikely that a refusal in other jurisdictions would succeed, even though some clinics are still reluctant to provide ART to same-sex couples.

Nontraditional Families

Almost from the time artificial insemination by donor began to be used, lesbian couples have employed it, often without the involvement of any medical professional. Typically, this would involve one of the couple being inseminated noncoitally with donor sperm, often from a close relative of the woman’s partner. In that way, a family in which a female couple had children that had a close genetic relationship to both women began to look more and more like the traditional “nuclear” family. With the development of IVF, women could have families even more closely connected biologically, i.e., one of the couple could gestate embryos created by IVF of eggs from the other, again, often with sperm from a close relative of the gestating partner. With the introduction of gestational arrangements, male same-sex couples could similarly create families with genetically related children, by, for instance, mixing sperm from each of the couple to fertilize donor eggs by IVF and employing a gestational carrier. Or, sperm from one of the male couple could be used to fertilize an egg from a woman closely related to the other partner. While these methods seemed to approximate the ideal of a biologically connected “nuclear” family, the rights of the individuals involved were, and in some jurisdictions, still are, anything but certain.

In the early years of ART, when disputes arose, the concept of “family” seemed to have little force, when measured against the uncertainties in the law in general, prejudice against homosexual relationships, and the rights asserted by donors or gestational carriers. However, we have come a long way from Nancy S. v. Michele G ., 228 Cal. App. 3d 831 (1991), in which a nonbiological partner was denied standing to sue for visitation, and Jhordan C. v. Mary K., 179 Cal. App. 3d 386 (1986), where a sperm donor was able to establish parental rights to the exclusion of the nonbiological female partner. With the development of the equitable doctrines of parentage by estoppel, in loco parentis, de facto parent, and equitable parent (the characteristics and acceptance by courts of these doctrines vary by state), same-sex partners have acquired more and more rights to standing and parentage. Moreover, the so-called doctrine of “intended” parentage has also furthered the claims of same-sex partners who participated in ART, but in the past found themselves distanced from the children they helped to create because of the lack of a genetic relationship. Different results have been reached in different jurisdictions, but generally, there has been a trend to recognize the importance of preserving family relationships, without regard to the fact that the adults are in same-sex relationships. Although difficult to measure, this phenomenon has undoubtedly had a significant influence on the debate about same-sex marriage, and its recent acceptance by courts and legislatures.

Posthumous Reproduction

The possibilities for posthumous reproduction enabled by ART have not been the primary driver for advances in this area of medicine, but the idea is by no means new. As far back as 1866, Paolo Mantegazza (aka Montegazza), an Italian physician, speculated that sperm could be preserved by freezing, and that soldiers going into battle might have their sperm frozen beforehand, so that, in the event they were killed in battle, their wives might use the sperm to beget heirs posthumously. In any discussion of posthumous reproduction, it is important to parse its goals by discussing the desire to preserve a genetic legacy separately from the desire to preserve or alter the legal rights of offspring.

While the awarding of Social Security survivor benefits to biological offspring not conceived at the time of the decedent’s death is, in itself, a reasonable end result, the justifying determination that the individual is an heir may have far-reaching consequences when a substantial estate is at issue. Rather than complicating estate law to accommodate a family of modest means with Social Security survivor benefits for an individual born posthumously, some consideration might be given to amending the Social Security statute to permit survivor benefits if posthumous genetic offspring are born within a certain time window, regardless of whether they are “children” or heirs of the deceased. California has enacted a statute that explicitly permits and establishes heirship where the child is conceived within two years of the decedent’s death if certain other conditions are met. See Cal. Probate Code § 6407. Amendments to the Uniform Probate Code (UPC) in 2008, Sections 2-120 and 2-121, 8 U.L.A. Pt. 1 57 et seq. (2009 pocket part), thus far enacted only in Colorado and North Dakota, provide that, under certain circumstances, a child that was in utero within thirty-six months, or born within forty-five months, of death, is the child of the intended parent.

A related issue is the extraction of gametes from deceased individuals. A common scenario is a spouse or other family member requesting, or sometimes demanding, extraction of gametes where someone has died suddenly, where time is of the essence in making a decision to extract gametes. This circumstance may present a dilemma for a health care provider, since a delay of just a few hours may result in loss of the chance to obtain viable gametes. If retrieval is covered by the Uniform Anatomical Gift Act, 8A U.L.A. 33 et seq. (2009 pocket part), retrieval may be accomplished without prior consent of the deceased, unless the deceased explicitly refused posthumous retrieval. See Bethany Spielman, Post Mortem Gamete Retrieval After Christy, ABA Health eSource, Oct. 2008, A reasonable solution for the health care provider (physician or hospital) may be to establish policy that would require the requesting party to agree to an escrow of the gametes pending a court order to permit transfer, so that issues of parentage can be decided before transfer.

Marriage Dissolution

In the context of a marriage dissolution, courts in the United States have thus far consistently ruled that an embryo may not be transferred for gestation if one of its progenitors objects. If there was a contract that would permit gestation against objection, the contract has been found to be void or unenforceable, but if there was a contract that prohibited transfer against objection, then the contract was found to be valid and enforceable. Exactly what remedy under law would be available if an embryo were transferred over objections is not clear, and fashioning one could be problematic. It is worth noting that even an intended parent not genetically related to the child may “veto” transfer. Litowitz v. Litowitz , 48 P.3d 261 ( Wash. 2002). Although a “right to procreate” has been enunciated, courts have universally opted for a superior “right not to procreate,” with little analysis. See Ellen Waldman, The Parent Trap: Uncovering the Myth of “Forced Parenthood” in Embryo Disputes , 53 Am. U. L. Rev. 1021 (2004). One commentator has suggested an implied contract to not transfer against objection, based on the concept of a “joint reproductive goal,” i.e., an assumption or legal fiction that both progenitors at the time of embryo creation agreed that the embryo would not be transferred without mutual contemporaneous consent. See Robyn Shapiro, Who Owns Your Frozen Embryo? Promises and Pitfalls of Emerging Reproductive Options , Human Rights, Spring 1998.

Courts have avoided the partial solution of at least giving an objecting intended parent/progenitor the option of relinquishing parental rights and responsibilities prior to transfer of any embryo (assuming, of course, that there is at least one adult who will be legally bound as a parent). The 2002 UPA would relieve an individual of parental rights and responsibilities if there were no writing or if consent were revoked prior to embryo transfer. Amendments to the UPC in 2008, referred to above, would extinguish, or establish, parental rights and responsibilities in a divorced or deceased individual based on a writing executed before transfer, within certain time limits in the case of the deceased. Although designed to facilitate embryo “adoption,” a recent Georgia statute could be interpreted to apply to a situation where an ex-spouse objecting to embryo transfer could lawfully relinquish parental rights and responsibilities prior to embryo transfer, leaving the party desiring embryo transfer as the sole parent. See Ga. Code Ann.
§ 19-8-41 (2009).

As matters of policy, two concerns remain. If embryo transfer occurs, for whatever reason, over the objections of one party, what is the effect on the objecting progenitor, and what is the effect on the future child of the transferring party/intended parent? Those considerations need to be weighed against the rights of the party wishing to transfer the embryo.

Putting aside for a moment any religious belief or moral ethic about the uniqueness of the embryo that resulted, where does the idea that one party can force destruction (or indefinite cryopreservation) of the embryo against the wishes of the other—particularly when the party who did not change his or her mind will have to undergo additional invasive procedures to have a child—come from? If a party undergoes invasive procedures required for IVF in the reliance that the other party intends to have and also wants a child, is the right of the latter to destroy the embryo (i.e., the right not to procreate) unfettered by the rights of the party who will have to undergo more invasive procedures as a result? It is quite likely that a frozen embryo dispute will come before the U.S. Supreme Court. If that occurs, the issue will likely involve delineating the scope of the so-called right to procreate and that of the right not to procreate. Remember, in constitutional doctrine these rights are not absolute, but rights that are to be exercised without governmental interference.

Embryo and Gamete Mix-ups

Perhaps one of the most problematic areas in the law of assisted reproduction is that of embryo and gamete mix-ups. Closely related is the problem of intentional deception in this context. The common denominator is a “parent” with a child whose genetic make-up is different than planned. Such a situation could result from carelessness in the handling of embryos or gametes, or it could result from intentional substitution for any number of reasons.

Of course, these kinds of situations have arisen throughout history in the form of accidental or intentional baby mix-ups and are not restricted to assisted reproduction. In the specific context of assisted reproduction, the object of the mix-up is a tiny gamete or embryo not visible to the naked eye. While it may be easier to accidentally switch a small vial, the chances of discovering that a mix-up has occurred are relatively small, absent some other circumstance, e.g., when a black baby is born to white parents, or if genetic testing is routinely employed postbirth, as may often be the case in a gestational carrier arrangement, but not necessarily in gamete or embryo donation.

While no solution is perfect, generally, the child should be returned to the parents for whom he or she was originally intended as soon as possible. If the mistake is not discovered until after the passage of several years, then a shared custody arrangement may be appropriate. The passage of time that occurs during the litigation should probably never be a factor in assessing “bonding,” where the party having physical custody acts to prolong litigation.

The Rights of Children Born through ART

It ought to be generally assumed as a matter of policy that children should be born with at least one legal parent, and that there be certainty in that regard.

A child’s right to know the identity of a donor or gestational carrier, when those individuals object, is controversial. A donor’s medical history should not be problematic in this regard, as detailed medical information can be provided anonymously. If donors assured of anonymity become at risk of losing their anonymity, the willingness of individuals to be donors may diminish. Yet, the child was necessarily never a party to such an agreement and may successfully assert a right to know the identities of his or her biological parents.

Children who are born with genetic defects or illness as a result of negligence may also have rights against the fertility practitioner or clinic, or even the donor.

As the use of assisted reproduction to build families becomes more commonplace, the rights of the individuals involved have become better defined over the last two or three decades, but there continue to be gaps in the law that result in uncertainty. Particularly in the case of same-sex couples, so-called nontraditional families have gained wider acceptance, not just in the eyes of the law, but of society as well. The law of assisted reproduction will continue to develop and change in a positive way, but such a course depends upon a recognition of the changing concept of the family as its rudder.

Bruce L. Wilder

Bruce L. Wilder is of counsel to the Pittsburgh, Pennsylvania, law firm of Wilder & Mahood, PC. He has practiced in the area of health law since 1986 and has been a practicing physician for several years.