Sweeping scientific developments have taken place with human reproduction in recent decades, but the law has struggled to keep up with this progress. Assisted Reproductive Technology, or ART, is a family-building option where a third party is involved in helping a family with the assistance of medical intervention. Heterosexual and same-sex couples who previously might not have been able to have children now have many options as a result of assisted reproductive technology, such as sperm and egg donation, in vitro fertilization and surrogacy.
Generally speaking, these technologies involve “collaborative reproduction” whereby individuals who are not intended to be parents and those who are intended to be parents participate collaboratively to produce a pregnancy. This is a classic situation where the law has not caught up with medical technology. Either there is no law applicable to these situations, or the development of scientific and technological advances has not been accompanied by uniform legal development. State trial courts are sometimes forced to resolve specific issues without having precedent upon which to reply.
“Lost Boys” actor Jason Patric’s California custody battle exemplifies the complexity and confusion surrounding parental rights in the ART context. In June 2012, Patric filed a petition to establish a parental relationship with Gus, a child born in December 2009 to Danielle Schreiber, Patric’s former girlfriend. Gus was conceived through in vitro fertilization using Patric’s sperm. Schreiber opposed the petition, arguing that Patric was merely a sperm donor under California law, and therefore not Gus’s natural father as a matter of law.
The family law court set the matter in for trial in phases, the first phase being a determination of whether Patric was a sperm donor by law. It then entered a pendente lite order awarding Patric visitation with Gus. Subsequently, the trial judge determined that Patric did not have a parent and child relationship with Gus; rather, Patric’s role was that of a sperm donor who wasn’t listed on his son’s birth certificate. As such, the court ruled that Patric was precluded from having an ongoing parental role, and was not entitled to custody or visitation. The court also vacated the pendente lite visitation order.
Just last month, the California appellate court unanimously ruled that the trial court’s decision was incorrect and that California law does not preclude Patric from establishing that he is a presumed parent based on post-birth conduct. Returning to family law court, Patric will seek to prove that he qualifies as a father and fight for custody of Gus.
While not binding elsewhere, the California court’s ruling for Patric is likely to impact other cases involving reproductive technologies.
In the meantime, certain states have adopted the Uniform Parentage Act or a similar version in an attempt to bring uniformity to this emerging legal field.
Maryland has not enacted comprehensive legislation to address the legal implications of ART. The narrow topic of artificial insemination with respect to married couples is addressed in the Maryland Estates and Trusts Article, which states that a “child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes.” Md. Code Ann., Est. & Trusts § 1-206(b).
Under Maryland law, the husband’s consent is presumed. However, as the presumption of consent exists only for a husband, any non-married couple considering artificial insemination may want to enter into an agreement in order to define their right. Maryland Health General Article prohibits a person from using the sperm or eggs of a known donor after the donor’s death for ART purposes without prior written consent of the donor. Md. Code Ann., Health-Gen. § 20-111.
The Maryland courts and legislature have not addressed legal issues arising as a result of technologies involved in ART. With so little established legal guidance, the outcome of a given case may differ considerably from court to court and state to state regarding parentage, child support, custody, access and similar issues.
Attorneys are advising clients that a carefully crafted agreement be used, although there is some question as to the legality of compensating a surrogate for the act of surrogacy itself. Some attorneys also recommend obtaining a “birth order” so that the intended parent or parents will be on the birth certificate.
Such action would be necessary in cases involving a single man or same-sex couple and is attempted to be done, in most cases, as a pre-birth process by which the court order determines legal parentage for the child. The court also directs the hospital and the state department of vital records to place the intended parents’ names on the birth certificate of the child that the carrier delivers. This process seems to work most of the time, although several judges have ruled that there is no legal authority in Maryland for a pre-birth order.
There have been attempts in Maryland to adopt the Uniform Act and to bring uniformity to the area of Assisted Reproduction Law. During the 2014 legislative session, the Maryland Collaborative Reproduction Act was introduced to establish the rights and duties of intended parents using sperm or egg donors to conceive a child through “collaborative reproduction,” defined as assisted reproduction involving a gestational carrier, a gamete donor or an embryo donor or both. The proposed act also set forth requirements for a “Gestational Carrier Agreement” to be enforceable in Maryland. Ultimately, the bill passed in the Senate, but died in the House.
No doubt we will see it again, so stay tuned.
Marc B. Noren and Christine Hogan are family law attorneys with Adelberg, Rudow, Dorf & Hendler, LLC. For more information, call 410-539-5195 or visit www.AdelbergRudow.com.