Many opposite-sex couples have long been affected by infertility and sought alternative methods of family formation. Today, with increasing regularity, individuals and same-sex couples are also seeking to form families. To achieve this goal, couples and individuals looking to conceive have turned to Assisted Reproductive Technology (“ART”).
ART, according to the American Society for Reproductive Medicine and the U.S. Centers for Disease Control and Prevention, includes all fertility treatments in which both eggs and sperm are handled. Generally, ART involves procedures for individuals or couples who are referred to as Intended Parent(s) (IP). Procedures utilized by IPs include egg donation (where a fertile female donates eggs), sperm donation (where a fertile male donates sperm), and gestational or traditional surrogacy. Gestational surrogacy utilizes in vitro fertilization to transfer embryos to a surrogate mother, who then carries the child to term. In this scenario, embryos are created by either the IPs, donors, or a combination of the two. Traditional surrogacy involves the process of artificial insemination, where the sperm, provided either by the IP or a donor, is used to fertilize the egg inside the surrogate’s womb. With traditional surrogacy, the surrogate mother maintains a genetic link to the child.
While the medical innovations which drive this field are cutting-edge, our legal system is largely playing catch-up. However, California has lead the charge to establish legal parameters for ART practices in general and is one of the most surrogacy-friendly states in the country for Intended Parents. This cultural and legal climate exists because California courts have consistently ruled that Intended Parents utilizing ART are viewed as the child’s legal parents, regardless of any other genetic connection. In comparison, surrogacy is a crime in certain states, and others hold that surrogacy agreements are unenforceable. In California, however, it is the Intended Parent(s) who maintain legal rights as the child’s parents despite any genetic link between an egg donor, sperm donor or surrogate and the child. As an added benefit to Intended Parents in California, IPs here may obtain a pre-birth order, which can be applied for and granted during the third trimester. This order enables IPs to have only their names on their child’s original birth certificate, minimizing custody issues.
At first glance, ART procedures and legal connotations may seem overwhelming and complex to Intended Parent(s), especially with the various parties involved, including donors, agencies and lawyers. However, and especially in California, Intended Parents have an arsenal of legal protections at their fingertips: Well-drafted agreements and preventive legal protections should reassure Intended Parents that children born vis-a-vis surrogacy, egg or sperm donation will be free from legal conflict.