The Brave New World of Custody in Assisted Reproduction

1. Custody of Embryos and Frozen Sperm

Below is a summary of some of the issues that can take place when trying to determine which spouse gets custody of shared embryos in divorce proceedings.

a. New Technology and the Law

New medical technology has allowed many women the ability to get pregnant, which was not possible a few years ago.1 However, new technology has created new legal and ethical issues that state law has not appropriately addressed in most circumstances.

b. Case Examples

In Litowitz v. Litowitz, a couple had two embryos formed with donor eggs, and the husband's sperm, after a successful birth using a surrogate.2 The couple had the left-over eggs frozen with the intention that they would someday be implanted in the uterus of a surrogate mother, however, the couple subsequently divorced.3 The husband wished to place any children born from the embryos up for adoption in a two-parent family outside the state of Washington but the wife appealed from the court's ruling because she wanted to raise any potential children.4 The Washington Supreme Court ruled that the pre- embryos should be thawed out and allowed to expire because the dispute had not been resolved within a five year time-frame prescribed by the Cryopreservation Agreement.5

A Michigan case, Stratford v. Stratford, is also illustrative on this topic. The divorced couple fought over five frozen embryos for years.6 The former wife wanted to have more children, using the embryos, but the former husband did not agree.7 The Court of Appeals reversed stating the following: "We conclude that the order is invalid, for two reasons: (1) the order affects and imposes obligations and responsibilities upon the fertility clinic that was not a party to this appeal or the divorce action; and (2) the order's use of the permissive term 'may' renders the order vague, in the event plaintiff opts not to donate the embryo for adoption by 'another willing couple.'"8 Thus, the status quo of the embryo was to remain in effect until the parties to the divorce reach an accord with the fertility clinic concerning the embryo, or until such time as any contractual issues (implied-in-law, express or otherwise) are decided by a court of competent jurisdiction.9

In Szafranski v. Dunston, an Illinois court dealt with a similar situation in another case involving a couple's frozen embryos.10 In that case, the couple was never married and Mr. Szafranski's sperm and Ms. Dunston's eggs were utilized to create "pre- embryos".11 The court determined the best approach for resolving disputes over the disposition of pre-embryos created by one party's sperm and another party's ova is to honor the parties' own mutually expressed intent as set forth in their prior agreements.12 We therefore join those courts that have held that agreements between parties are generally to be presumed valid and binding, and enforced if there is any dispute between them.13

These cases demonstrate the difficult issues that can take place when reproductive technology is utilized. For this reason, it is important that parties understand the legal implications of their decisions beforehand to help ensure they avoid costly legal battles later.

2. In Vitro Fertilization

Modern medicine and science are allowing people to opportunity to conceive through new techniques such as artificial insemination, in vitro fertilization and embryo transplantation. As with embryos, these new techniques have created new legal dilemmas regarding the child's status and the rights and designation of the parents.14

a. What Is Artificial Insemination?

Artificial insemination is a technique that can help treat certain kinds of infertility in men and women. As part of this procedure, sperm is inserted into a woman's cervix, fallopian tubes, or uterus.15 This makes the trip shorter for the sperm and bypasses any possible obstructions.16 This can make pregnancy a possibility when it was not before.

b. Law Surrounding Artificial Insemination?

Artificial insemination raises a number of legal concerns. Most states' laws provide that a child born as a result of artificial insemination using the husband's sperm is presumed to be the husband's legal child.17 Most states have presumptions that if a child is born to a married woman, the child is that of her husband. The same principles generally apply to artificial insemination.18

When a child is born after artificial insemination using the sperm of a third-party donor the law is less clear. Some states stipulate that the child is presumed to be the legal child of the mother and her husband, whereas others leave open the possibility that the child could be declared illegitimate.19

In the case In re Baby Doe, the Supreme Court of South Carolina held that a husband who consents for his wife to conceive a child through artificial insemination, with the understanding that the child will be treated as their own, is the legal father of the child born as a result of the artificial insemination and will be charged with all the legal responsibilities of paternity, including support.20

Similarly, in the case In re Marriage of A.C.H. & D.R.H., the Court of Appeals of Oregon held that husband consented to and participated in the artificial insemination of wife, and thus husband was the father, required to pay child support, for child.21

c. What Is In Vitro Fertilization?

The process of in vitro fertilization (IVF) is the fertilization of the egg outside the womb. This procedure has caused multiple questions as to legal rights of various parties.22

d. What Is the Law Surrounding In Vitro Fertilization?

Generally speaking, where the egg is donated by another woman, the birth mother will be treated as the legitimate mother of the child in the eyes of the law.23 There are special concerns for same-sex couples when it comes to establishing parental rights of child born as a result of IVF.24

There are numerous issues that may arise with respect to the procedure of in vitro fertilization, including:25

• Safekeeping of the egg

• Liability for the egg

• Custody issues over the egg

• Inheritance rights of the egg

• Parentage issues when the fertilized egg is replanted in the donor

• Parentage issues when the sperm used is donor sperm

• Parentage issues when the egg used for fertilization is from a donor

• Parentage issues when the fertilized egg is placed in another woman other than the donor

3. Surrogacy

When a woman carries a baby to term for another individual, who then becomes the legal parent of the child at birth, this is called surrogate parenthood?26 Surrogate mothers are often utilized where women cannot conceive or carry a child to term for various reasons. This typically happens through the implanting of an embryo fertilized by the male partner's sperm (this process is called "artificial insemination").27 Same-sex male couples also employ surrogate mothers, often by fertilizing one of her eggs, as an alternative to becoming an adoptive or foster parent.28 The surrogate mother relinquishes her parental rights the moment the child is born.29 The biological father becomes the legal father whereas the non-biological parent adopts the child. It is critical to note that not every state allow surrogate parent arrangements.30

There are two main types of surrogacy. Traditional surrogacy involves the artificial fertilization of the surrogate mother using the father's sperm.31 Traditional surrogacy was only type of surrogate parenthood arrangement available. The surrogate mother, therefore, is the biological mother of the child.32

In gestational surrogacy, the surrogate mother is implanted with an embryo created from the father's sperm and his partner's (or another woman's) egg.33 This procedure is relatively complex, time-consuming, and expensive. The advantage of gestational surrogacy is the opportunity to have a child genetically related to both parents.34

a. Surrogacy Agreements

From a practical standpoint, a surrogacy contract, or agreement, is riddled with dangers and can cause serious legal problems down the road. For example, what if the surrogate mother changes her mind and wants to keep the baby? What if a court does not enforce the agreement if a dispute arises? It is simply imperative that any party obtain the advice of an attorney.

b. State Surrogate Parenthood Laws

Some states expressly prohibit surrogacy, while others are either unclear about the practice, or have certain restrictions.35 As it relates to Illinois, Illinois has a statute highly favorable to gestational surrogacy which governs the process from contract formation to the issuance of birth certificates. 36 It applies to single parents who have furnished their own gametes or heterosexual couples where at least one person has furnished his or her own gametes.37 As it relates to Missouri, Missouri has no law governing surrogacy, but the courts are generally favorable.38

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1 See, Who Gets Custody of Embryos, available at: http://family.findlaw.com/surrogacy-artificial-conception/artificial-conception-artificial-insemination-and-in-vitro.html#sthash.65z6dhiL.V40xbTFb.dpuf.

2 Litowitz v. Litowitz , 48 P.3d 261, 264 (Wash. 2002).

3 Id.

4 Id.

5 Id. at 270-71.

6 Stratford v. Stratford, No. 300925, 2012 WL 516059, at *2 (Mich. Ct. App. Feb. 16, 2012).

7 Id.

8 Id.

9 Id. at *4.

10 Szafranski v. Dunston , 993 N.E.2d 502 (Ill. App. 2013).

11 Id.

12 Id.

13 Id.

14 See, Artificial Conception: Artificial Insemination and In Vitro Fertilization, available at: http://family.findlaw.com/surrogacy-artificial-conception/artificial-conception-artificial-insemination-and- in-vitro.html#sthash.65z6dhiL.V40xbTFb.dpuf.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 In re Baby Doe, 353 S.E.2d 877, 878 (1987).

21 In re Marriage of A.C.H. & D.R.H., 229 Or. App. 129, 135-36, (2009).

22 See supra note 1.

23 Id.

24 Id.

25 Id.

26 See, What Is Surrogate Parenthood, available at: http://family.findlaw.com/surrogacy- artificial-conception/what-is-surrogate-parenthood.html#sthash.K7GAnBDD.dpuf.

27 Id.

28 Id.

29 Id.

30 Id.

31 Id.

32 Id.

33 Id.

34 Id.

35 See, U.S. Surrogacy Laws by State, The Surrogacy Experience, available at: http://www.thesurrogacyexperience.com/surrogate-mothers/the-law/u-s-surrogacy-law- by-state/.

36 Id.

37 Id.

38 Id.