In 1884, in Philadelphia, a wealthy merchant complained to his friend that he and his wife could not conceive a child. The friend, Dr. William Pancoast, was a well-known physician at Jefferson Medical College. Dr. Pancoast used this golden opportunity to try out a new procedure. The merchant’s wife was anesthetized and, in front of an audience of medical students, the doctor inseminated the woman with semen obtained from “the best-looking member of the class.” Nine months later, a son was born and, reportedly, the mother never knew her husband was not the biological father of her son. Her husband, the wealthy merchant, knew and was delighted. The son discovered his unusual history at the age of 25, when enlightened by a former medical student who had been present at the conception. This was one of the first reported cases of artificial insemination, and probably the first one involving semen not from the husband of the birth mother.
Fast-forward to 1978. Louise Brown was born in England, as the world’s first “test-tube baby.” Of course, the phrase “test-tube baby” is no longer part of the lexicon. Louise Brown was born through the use of “in vitro fertilization.” If Louise Brown or the son of the wealthy Philadelphia merchant were born today, we would say they were conceived through Assisted Human Reproduction, or “Assisted Reproductive Technologies” (ARTs).
In the United States, more than six million people of reproductive age are affected by infertility. This number does not include the same-sex couples who desire to have children and who, by virtual necessity, must use ARTs if they want to have children and they do not want traditional adoption. Between 1977 and 1992, approximately 5,000 surrogate births took place in the United States. There are now thousands of surrogate births each year. According to United States Government (Centers for Disease Control), in 2009, there were 45,870 live births (deliveries of one or more living infants) from ARTs cycles (in vitro fertilization or artificial insemination) and 60,190 infants born as a result. Although the use of ARTs is still relatively rare as compared to the potential demand, its use has doubled over the past decade. Today, over 1% of all infants born in the U.S. every year are conceived using ARTs.
The desire of infertile and same-sex couples to have children and the availability of having children through Assisted Reproductive Technologies has created a technology gap between what is actually happening in society and the law of child custody and child support. The paradigm of existing law of parentage and child support, in Missouri and most other states, revolves around the idea that parent-child relationships are created by a man and a woman having sexual intercourse and a child being born as a result. This paradigm no longer fits or protects parents and children in a country where tens of thousands of children are born, each year, through ARTs. There is almost no statutory or caselaw authority to guide people dealing with these issues in Missouri.
II. Methods of Assisted Reproductive Technologies
In Vitro Fertilization. In Vitro Fertilization (IVF) is a process in which eggs are extracted from a woman’s ovaries and fertilized in a laboratory. Before the eggs are extracted, the woman’s ovaries are stimulated to produce the eggs. Then, the eggs are removed and fertilized, with sperm, in the laboratory. When a sperm cell fertilizes the egg, the fertilized egg divides. The medical community calls these fertilized eggs pre-zygotes, or pre-embryos. Laws and legal publications almost always refer to them as pre-embryos. In general, two or three pre-embryos are implanted into the uterus of the woman who is supposed to become pregnant and carry the child. If this part of the procedure is successful, one or more embryos will attach themselves to the uterine wall and develop into a fetus or fetuses.
Artificial Insemination. Artificial insemination is a process whereby sperm is implanted into the uterus of a woman to fertilize the ovum of the woman who will then, hopefully, bear a child as a result.
Surrogacy and Genetic Relationship to the Child. A “surrogate mother” (gestational carrier) is used when the intended mother in the ARTs process cannot bear the child conceived as the result of the process. These arrangements are called surrogacy agreements, or gestational carrier agreements. Surrogacy arrangements differ by the manner in which the intended parents are, or are not, genetically related to the child.
a. Traditional Surrogacy. In one type of traditional surrogacy arrangement, the ovum of the surrogate mother is artificially inseminated with the sperm of the intended father. The child in this arrangement is genetically related to the intended father and the surrogate mother but not the intended mother.
In another form of traditional surrogacy, the sperm of an anonymous donor is used to fertilize the ovum of the surrogate mother. In this arrangement, the surrogate mother has a genetic relationship to the child, but neither of the intended parents does. In both of these types of surrogacy, artificial insemination is generally the procedure used to attempt to impregnate the surrogate.
b. Gestational Surrogacy. Gestational surrogacy is an arrangement where the surrogate (gestational carrier) does not have any genetic relationship to the child. In one common scenario, the egg of the intended mother and the sperm of the intended father are fertilized in the laboratory, through IVF. The fertilized embryo is then implanted in the gestational carrier. In this arrangement, the intended mother and the intended father are both genetically related to any child born as the result of the procedure. The surrogate, or gestational carrier, is not genetically related to the child born.
In another scenario, the egg from an egg donor is fertilized with the sperm of the intended father through IVF. The fertilized embryo, again, is implanted in the gestational carrier. In this scenario, only the intended father (and the egg donor) are genetically related to the child. The intended mother (or partner of the intended father) and the gestational carrier are not genetically related to the child.
In a less common scenario, which is only necessary if both intended parents are infertile, the egg of a donor is fertilized with the sperm of a donor. The fertilized egg is implanted in the gestational carrier. In this scenario, neither the intended parents nor the gestational carrier have any genetic relationship to the child or children born as the result of the procedure.
It is also possible to have a gestational surrogacy arrangement where donor sperm is used and the egg of the mother is used. This is not very common, because this would only be necessary if the intended father was infertile (or if there were no intended father) and if the intended mother had viable eggs, but could not carry a child herself. In this scenario, the intended mother is genetically related to the child, but the intended father is not, and the gestational carrier is not.
The important genetic fact to remember is that, in any true gestational carrier arrangement, the surrogate, or gestational carrier, is not genetically related to the child or children born.
Egg Donation and Sperm Donation. Egg Donation occurs when an intended parent or parents obtain a viable egg from a donor, for the purpose of having a child. Egg donation, by its nature, must involve IVF, but does not have to involve surrogacy. If the intended mother can carry a child, but does not have viable eggs, then she can have the donor egg fertilized with the intended father’s sperm, through IVF, and implanted in her own uterus. In this scenario, if a child is born, the intended mother has born the child, which makes her the presumed parent in Missouri. However, she is not genetically related to the child. Sperm Donation occurs when the intended father is infertile or there is no intended father. This can occur through simple artificial insemination, or it can be part of an IVF process.
III. ARTs Agreements and Procedures
Surrogacy (Gestational Carrier) Agreements. Surrogacy, or gestational carrier, agreements provide a framework for an intended parent or parents to contract with a surrogate, or gestational carrier, to carry and give birth to a child, with the express understanding that the carrier will have no parental rights to the child after its birth. In Missouri, and in the majority of jurisdictions, there is no caselaw nor any statutory framework for the approval or disapproval of such agreements. A minority of states have specific states or cases approving, or disapproving, surrogacy agreements. As a result, any person entering into such an arrangement, in Missouri, or in any of the jurisdictions where there is no statute or case law approving or disapproving such agreements, needs to do so understanding that on one can predict, with any degree of certainty, whether or not a court would enforce such an agreement. These agreements basically provide, in part:
a) The gestational carrier will undergo an embryo transfer, through IVF, for the purpose of becoming pregnant;
b) If a child is born, the gestational carrier will relinquish any and all parental rights;
c) The gestational carrier agrees that the intended parents shall have custody of the child immediately upon birth, and the intended parents shall have the sole right to raise and make any decisions for the child;
d) The intended parents will accept all parental responsibilities for the child or children born; and
e) The intended parents will reimburse the gestational carrier for any expenses she incurs in the process, and they will reimburse for her for the expenses of care of the fetus.
The primary purpose of a properly drafted Gestational Carrier Agreement will be to insure that the intended parents will have custody, be the legal parents, and raise any child or children born as the result of the procedure. In the simplest scenario, both of the intended parents would be genetically related to the child. In that event, if a dispute arose after the birth of the child, the intended parents in Missouri and in most jurisdictions could use the Uniform Parentage Act (a paternity suit) to establish their parentage. If intended parents entered into a “traditional surrogacy” contract, where the surrogate provided her own egg and was inseminated with sperm, in Missouri or in any of the jurisdictions which do not have statutes or cases ruling on the validity of surrogacy, then the intended parents risk not having standing (not being able to sue) for custody if the surrogate chose to keep the child.
No Gestational Carrier Agreement in Missouri should provide for any compensation of the Gestational Carrier. The payment or acceptance of compensation could constitute a crime, under §568.175, Revised Statutes of Missouri. Most such agreements do provide for reimbursement of expenses, including reimbursement for the care of the fetus. As of this writing, there are no reported opinions in Missouri as to whether or not this is a permissible practice.
Egg or Sperm Donation Agreements.
These agreements provide, in general, that the donor will relinquish any parental rights and the intended parents will be responsible for all parental responsibilities for any child born as the result of the procedure. Once again, such agreements in Missouri should not provide for compensation for the donor. They should only provide for reimbursement.
What Procedures are Necessary Following Surrogacy (Gestational Carrier) Agreements.
If an intended parent, in Missouri, is genetically related to the child born as the result of a surrogacy or gestational carrier agreement, that parent may file an action under the Missouri Uniform Parentage Act (paternity suit), to establish parentage. This can be done by the mother and the father. If an intended parent is not genetically related to the child, then that parent will need to petition for adoption of the child.
What Procedures are Necessary Following Egg or Sperm Donation Agreements
The gestational mother is the presumed lawful mother of a child under Missouri law. Therefore, an intended mother who gives birth as the result of an egg donation does not have to take any action to establish lawful parentage. If an intended father is not genetically related to a child, as the result of a sperm donation and, further, if the intended father is not married to the other intended parent, then the intended father will need to file a Petition for Adoption in order to establish parentage. If he is married to the intended mother, and the parties have followed the Missouri statutory requirements of §210.824, Revised Statutes of Missouri, then he is the lawful parent, without taking further action.
IV. Legislation Relating to Surrogacy Agreements
Missouri and 32 other states have not passed any legislation regarding surrogacy agreements. As of this writing, at least 17 states and the District of Columbia have passed such legislation:
- Michigan and the District of Columbia have statutes making it a felony to facilitate a surrogacy contract.
- Six jurisdictions-Arizona, Indiana, New York, North Dakota, Michigan and the District of Columbia-have passed legislation making surrogacy contracts void and unenforceable.
- Five states-Kentucky, Louisiana, Nebraska, Nevada, and Washington-have prohibited only those surrogacy contracts entered into for monetary gain by the surrogate. (There is no statutory scheme in Missouri dealing with surrogacy or gestational carrier agreements. However, §568.175, RSMo., makes it a crime to provide, solicit, or receive any money in exchange for the delivery of a child to another person).
- Six states-Florida, Illinois, New Hampshire, Utah, Virginia and Texas-have, on the other hand, enacted legislation that specifically allows and enforces surrogacy contracts so long as certain requirements are met. Texas requires the gestational parents to be married.
- Arkansas has a statutory scheme which does not make clear whether or not compensated surrogacy agreements will be enforced.
V. Traditional Surrogacy and Custody
In re: Baby M
The infamous Baby M case turned the traditional idea of parentage on its head. This case involved a traditional surrogacy contract between William Stern and Mary Beth Whitehead. The contract provided that Whitehead was to be artificially inseminated with sperm from Stern and for her to carry the baby to term. After the baby’s birth, Whitehead was to relinquish the child to Stern and Stern’s wife. She was then to give up any parental rights she had in the child and allow Stern’s wife to adopt the child. On March 27, 1986, Whitehead gave birth to a healthy baby girl. She gave the baby to the Sterns, but appeared at the Sterns residence, a week later, and demanded that she spend time with with the child or she would kill herself. The Sterns reluctantly agreed to let her take the baby, named Melissa, home with her for a week. Whitehead took the baby and immediately fled to Florida. The baby was forcibly taken from Whitehead, four months later, by Florida law enforcement, and returned to the Sterns in New Jersey.
Thus began a prolonged and sensational legal battle to determine who were Melissa’s parents under New Jersey law. The New Jersey Supreme Court ultimately held, among other things, that surrogacy contracts conflicted with laws prohibiting the exchange of money in connection with adoptions and conflicted with the public policy of the state. In spite of the unenforceability of the surrogacy contract, however, the Court, using a typical best interests of the child analysis, found that Melissa’s best interests justified awarding custody to Stern and his wife. The Court held there was no justification, under New Jersey law, for terminating Whitehead’s parental rights, and remanded the case to the trial court for a determination of what visitation she should have with Melissa.
The Baby M was the first reported case involving ARTs and a custody dispute. Many statutes have been passed since that time, and numerous cases have been decided involving surrogacy. However, the Baby M case still stands for the proposition that it is extremely risky (perhaps foolhardy) to enter into a traditional surrogacy arrangement. VI. In Vitro Fertilization and Custody Issues
Who are the parents of a child born through in vitro fertilization (IVF)? Appellate courts in several jurisdictions, including New York, Tennessee and California have answered this question. In each case, the court found that the parents who intended to cause the birth of a child and raise the child were the legal parents.
In the New York case, McDonald v. McDonald, the husband took the position, in a divorce proceeding, that the wife had no custody rights to the children because she was not genetically related to them. The husband and wife had gone through IVF, combining donor eggs with the husband’s sperm to create preembryos, which were implanted in the wife. The wife gave birth to twins as a result. The New York court held that the wife was the legal mother because of her intent to raise the children and create a family.
In the California case, Johnson v. Calvert, a husband and wife contracted with a gestational carrier (surrogate mother) to bear a child for them through IVF. The husband and wife both provided the genetic material for the child. The surrogate mother maintained that she had maternity rights because of her biological connection (gestation) to the child. The California court denied the gestational carrier’s claim and held that the wife was the legal mother because “from the outset [she had] intended to be the child’s mother” and the child would not have been born but for the couple’s desire and actions to create a family. This is now known as the ‘intended parent” doctrine. In 2005 the California Supreme Court followed the “intended parent” doctrine in K.M. v. E.G.. In K.M., a woman who donated her eggs to her lesbian partner so that the partner could bear a child through IVF agreed, at the time of conception and the birth of the child, that the partner who bore the child would be the sole parent. The donor (K.M.) signed consent forms agreeing that she would have no control over the disposition of the eggs. Twins were born to the partner (E.G.) as the result of the IVF procedure. K.M. and E.G. continued to live together as a family unit for five years after the birth of the twins but never disclosed to anyone else K.M.’s genetic relationship to the children. The California Supreme Court found that both women were the parents of the children.
The Tennessee Supreme Court, also in 2005, in In re C.K.G., ruled that a gestational carrier who had no genetic connection to triplets born to her was the legal mother of those triplets because she and the biological father (her boyfriend) intended for her to be the mother of the children for all purposes.
However, in 2009, the Missouri Court of Appeals for the Western District, inWhite v. White, held in a case involving two women in a same-sex relationship who each gave birth to a child, separately, through artificial insemination, and then raised the children together, could not sue each other for custody of the child to which they were not genetically related.
VII. Disposition of Frozen Preembryos
Frozen, or cryopreserved, pre-embryos are the natural result of the IVF process. Sometimes as many as 15-20 preembryos are created. Generally, only 2 or 3 are inserted into the woman’s uterus in the IVF process. Cryopreservation technology allows couples to have more than one pregnancy without having to endure the painful and expensive process of stimulating the woman’s hormones and obtaining her eggs more than one time. Disputes arise when unused frozen pre-embryos exist and a couple decides to divorce or break up. If one party wants the pre-embryos to be used and the other party want them to be destroyed, they become the subject of litigation.
As of this writing, the highest courts of seven states have resolved such disputes over frozen pre-embryos. The results in this cases have been very similar, although the courts have used very different analyses to reach the same result. The Tennessee Supreme Court and the New Jersey Supreme Court held that the constitutional right of a someone not to become a parent against their wishes was greater than the constitutional right of someone to become a parent. The highest courts of New York, Washington and Oregon have all ruled that valid contracts which prevent froezen pre-embryos from being used if one of the parties did not want them to be used should be honored. The Supreme Courts of Iowas and Massachsuetts have both ruled that it is against public policy to enforce an agreement that would cause a person to become a parent against their wishes. The important point is that, in all of these cases, the courts have ruled against the party who wants frozen embryos to be used against the wishes of the other party.
The California Court of Appeals, in In re Buzzanca, predicted that even if assisted reproduction technology were banned in a particular state, that state’s courts would still be called upon to determine the identity of parents of children born of ARTs in other states where the procedures were not banned.
A child cannot be ignored. Even if all the means of artificial reproduction were outlawed with draconian criminal penalties visited on the doctors and parties involved, courts would still be called upon to decide who the lawful parents are and who–other than the taxpayers-is obligated to provide maintenance and support for the child. … Courts can continue to make decisions on an ad hoc basis without necessarily imposing some grand scheme. Or, the Legislature can act to impose a broader order which, even though it might not be perfect on a case-by-case basis, would bring some predictability to those who seek to make use of artificial reproductive techniques.
All of the children who are born through the use of ARTs deserve the protection of having their parents bound by the same rights, obligations and responsibilities as children born from sexual intercourse.
Thus far, every court that has been forced to deal with custody disputes involving children conceived through Assisted Reproductive Technologies has done so without guidance from the legislature. Hopefully, the Missouri legislature and other state legislatures can give its citizens the guidance they need to make intelligent decisions about having children through assisted reproductive technologies.
By: Tim Schlesinger