Starting a family today must not follow the traditional methods. Heterosexual couples experiencing fertility issues or same-sex couples who wish to start a family can do so through artificial conception and surrogacy.
These issues have some legal implications that you and your partner must understand before taking the plunge. San Diego Divorce Attorney will guide you through these legal issues to make informed parenting decisions.
Overview of Artificial Conception
Couples that experience problems with natural conception can explore artificial conception methods such as in vitro fertilization, artificial insemination, or surrogacy to start a family. Artificial conception methods are not without their set of legal complications that you need to know before you proceed.
The common procedures in artificial conception include:
- Artificial insemination
- Surrogate motherhood
- In vitro fertilization
- Embryo transfer
1. Donor Insemination
Most couples pursue artificial insemination due to male infertility issues such as low sperm count or sperms that lack the strength to swim up to the fallopian tubes. You can also pursue this option if your female partner has abnormalities in the reproductive system such as endometriosis or unreceptive cervical mucus.
The sperms used for artificial insemination can be from the intended father or a known or unknown donor. If the intended father is the sperm donor, then parentage might not present such an issue.
But if you are using the sperm of a donor, you have to be aware of the legal implication before you even get pregnant. The laws concerning the parentage of sperm donors in California under family code 7613(b) (2) (A) state that:
- The sperm donor is not the child's father if he provides his sperm to a sperm bank rather than directly to the recipients.
- The donor and the recipients signed an agreement before the child's conception, stating that the donor will serve as a sperm donor, not the father.
Signing an agreement where the donor gives up the right to become the child's natural father saves you the trouble and legal battle of child custody later.
California is also clear that if the sperm donor has intercourse with the intended mother or the surrogate, he is no longer a donor but the child's legal father. Donor agreements work only if the sperms are delivered to the woman through assisted reproduction technology.
Sperm donation agreements come in handy when you are relying on artificial insemination to start your family. The agreement plays a vital role in:
- Establishing the legal status of the donor (legal sperm donor or a legal father)
- Documenting the interests, roles, responsibilities, and commitments each party makes in the process. Signing the contracts binds all the concerned parties to the terms of that agreement.
- Resolving future court battles concerning parenting rights
The agreement also has to abide by other laws on parentage and parental rights. For example, a child conceived through a known sperm donor could be regarded as the legal child of the known donor if the two have an established relationship as father and son, and the mother acknowledges the donor as the father (regardless of an existing agreement).
The court might also rule in favor of the donor if the recipient expects the donor to contribute to some of the needs of the child. Under the law, only fathers have the responsibility to take care of their children.
You can avoid these issues by discussing your interests with a family attorney to explain the best options you can pursue and the implications of the agreements you make.
2. Egg Donation
Women who cannot produce fertile ova, have genetic conditions or have previously failed IVF attempts can fulfill their dream of having a family through donor eggs.
As with artificial insemination, egg donors and the recipients have to sign an agreement regarding their rights, roles, and responsibilities. Such an agreement can save you future trouble with the donor concerning parental rights.
The agreement can include factors such as:
- Custody or guardianship in case of the death of the intended parents
- Examinations and screenings required of the egg donor
- The relationship of the intended parents
- The conduct of the donor in preparation for the egg donation procedure
- A statement of acknowledgment of the potential risks of the procedure
- A declaration that the donor signs the agreement willfully
- Disposal of unused eggs or embryos
- Dispute resolution and steps after a breach of contract
- Confidentiality and privacy rights of all the concerned parties
California offers several statutory forms of assisted reproduction, which help couples or individuals, who rely on egg or sperm donations to conceive. These forms protect your rights as the parent to that child. You must complete the relevant statutory forms for assisted reproduction based on your situation as follows:
- Form 1 for two married or unmarried individuals who intend to conceive a child using assisted reproduction
- Form 2 for two unmarried intended parents using the sperm of the intended parent to conceive (without the use of a surrogate)
- Form 3 two intended parents where one intended parent will provide the ova, and the other will give birth (no intention to use a surrogate)
- Form 4 for intended parents using the sperm or egg of a known donor to conceive a child (not using a surrogate)
Regardless of completing these forms, you could request a court judgment of parentage or adopt the child (ren) to protect your parental rights in case you move to another state. You can request a parentage judgment before or after the birth (since assisted reproduction is a planned process, ironing out these details before the birth of a child makes the future easier on you and other parties).
3. In Vitro fertilization
Couples experiencing fertility issues can use in vitro fertilization to get a child. In vitro fertilization involves fertilization of an egg using sperm in laboratory settings. Before the procedure, doctors monitor the woman's health and offer fertility drugs to trigger the release of multiple healthy eggs. The doctor then collects these eggs and facilitates fertilization through laparoscopy.
Issues that could arise due to IVF depend on the source of the sperms and eggs used. Another concern is the disposition, or use of the remaining embryos in case the couple no longer wants to use them or after a divorce.
You can address these issues through a contractual agreement that states what you should do if these scenarios arise. Another issue could arise relating to the parentage of donated embryos. Embryo donation occurs when an IVF couple releases the remaining embryos after a successful procedure.
Beneficiaries of these embryos must ensure that they understand the condition under which these embryos were released. For example, does the donating couple wish to know the children arising from their embryo?
Surrogacy is an arrangement where another woman (the surrogate) agrees to bear one or more children on behalf of you and your partner. The surrogate goes through artificial insemination with the sperms of the intended father or donor (making the surrogate genetically related to the child.
Alternatively, the doctor can impregnate the surrogate with egg and sperm of the donor parents through in vitro fertilization. The option you and your partner choose will depend on your preferences and technicalities, such as your sex.
Surrogacy parenting requires that you sign a surrogate agreement with the surrogate parents. The agreement stipulates the surrogate's rights, the intended parents, parental rights of both parties, and the costs the intended parents will cover.
The counsel of an attorney while drafting the agreement will ensure the enforceability of the agreement under the family code. In addition to its enforceability, your attorney will ensure that the agreement provides adequate protection for all the concerned parties.
Surrogacy Laws in California
California has the most friendly surrogacy laws in California, both for the surrogate and the intended parents. The state allows both traditional and gestational surrogacy, but the laws are more extensive for gestational surrogacy.
Traditional surrogacy involves the surrogate mother carrying a pregnancy on behalf of the intended parents through artificial insemination with the sperm of the intended father or a sperm donor.
This type of surrogacy presents higher risks of emotional and legal issues, especially if the mother decides to keep the baby after birth.
Even with traditional surrogacy, you can create an enforceable agreement with the help of a family law attorney to ensure that it protects the concerned parties' rights.
Gestational surrogacy is a much safer option since the law has extensive coverage for the rights of the intended parents and the surrogate. In gestational surrogacy, the donor has no genetic relationship to the child, since the egg and sperm are from the intended parents or donors.
California Family Codes 7960 and 7962 provide the legal aspects of gestational surrogacy in the state. One of the requirements is the need for a surrogate contract and legal representation for all parties.
Surrogacy Contracts in California
Surrogacy contracts are one of the essential tools for a successful surrogacy process. They are based on collaboration from all parties in expressing their needs, terms, and rights. In addition, these contracts must have the approval of both parties and be legally enforceable.
Such a contract can provide a way forward in dealing with the legal and emotional issues that could arise after the child's birth.
Surrogacy contracts must cover the following g issues:
- The financial costs of the process including the base compensation for the surrogate, additional compensation based on the pregnancy (for example multiples, complications and the sacrifices the surrogate has to take, for example, being out of work)
- The risks and liabilities associated with the pregnancy
- The health of the surrogate
- The responsibility of the surrogate in caring for the baby and herself throughout the pregnancy
- Sensitive issues that might arise during the pregnancy, for example, termination
- Parties present at prenatal appointments
- The responsibilities of the intending parents and the surrogate before, during and after the pregnancy
The contents of the surrogate contract will differ depending on your situation and the possible outcomes or concerns you can think of. If you are going through traditional surrogacy, you might want to discuss visitation and adoption issues with the surrogate parent.
Senate Bill AB 1217 provides additional guidelines that all parties to a surrogate process must adhere to including:
- Separate legal counsel must represent the intended parents and the surrogate.
- All the assisted reproduction agreements for surrogates must be notarized.
- The agreement must be executed before the beginning of assisted reproduction treatments or embryo transplantation.
- The bill allows intended parents to determine parentage before the birth of the child.
- The agreements are sealed except to the intended parents, the surrogate, and the attorneys of both parties and the Department of Social Services (only the mentioned parties can access these records).
The attorneys representing the intended parents and the surrogate communicate with their clients and table the issues from both sides. Typically, the intended party drafts the first contract and sends it to the surrogate and her attorney.
They will review the contract to ensure that it covers the surrogate's needs, requests, and interests. Negotiations follow between the attorneys and the clients until they can settle on a fair solution for all. The attorneys then draft the final contract, including all the relevant issues, and present it to the intending parents and the surrogate for signing.
California does not allow you to proceed with medical procedures before you draft the surrogate agreement; allocate enough time to the contract to ensure you adhere to the relevant laws.
Issues in Traditional Surrogacy
Traditional surrogacy occurs when the woman provides the egg used for the pregnancy. It is a safer approach to parenting from a health perspective but presents a wider range of legal issues.
Traditional surrogacy has become less common in California due to the emotional and legal issues in the process. In traditional surrogacy, the surrogate has a right to the child since she is genetically related to this child.
Such surrogates sometimes refuse to give up their children once they are born, leaving you in the same (or worse) frustration you were in before opting for surrogacy. For example, the surrogate mother could change her mind about giving up her child after birth.
While you can sign a surrogacy agreement, you need to consider other alternatives, such as stepparent adoption. Involve your attorney in this process so that he or she can help you navigate this complex area.
Note that California lacks the extensive legal coverage accorded to gestational surrogacy, so you need to tread carefully. As opposed to gestational surrogacy, the surrogate still has parental rights in traditional surrogacy.
Therefore, once the child is born, you have to initiate the adoption process where the surrogate will give up her parental rights.
Most professional surrogate bodies also prefer to work with parties seeking gestational surrogacy due to fewer legal complications.
You can make the process of a traditional surrogacy less complicated and emotionally overwhelming by finding an attorney who has extensive experience in similar cases and professional bodies that support traditional surrogacy.
Legal Implications after a Divorce
Artificial conception raises issues such as parentage and embryo disposal if the couples separate. The common issues include:
- Custody battles
- Embryo use and disposal
Custody battles after artificial conception can arise, especially when one of the parties is the child's genetic parent. In such cases, the court could use the contract signed before the conception of the child. Adoption actions that could have taken place can also help in the determination of custody.
Embryo use and disposal are issues that typically complicate the divorce process. Embryos are regarded as the joint property of the couple. Problems can arise when these parties do not agree on issues such as:
- Whether either party can use the embryo to have children
- Whether to dispose of the embryos
- Whether either party will be responsible for the children born from these embryos
- Whether any party changes his or her mind about the use or disposal of these embryos
- The role the contract plays in these issues
In most cases, the party, which does not wish to become the parent, could prevail in having the embryos disposed of, especially if the other party can become a parent through other means except the embryos. The court will weigh the interest of each party in procreating or not procreating before giving a ruling. In some cases, the court could uphold the medical consent agreements you signed at the time of the procedure.
Find Legal Counsel for Artificial Conception and Surrogacy Near Me
One of the most overlooked details in surrogacy is protecting the legal rights of the donors, surrogates, and the intended parents. Failing to clear out diverse issues before the child's conception can result in legal problems such as custody battles later.
Although California supports couples that wish to start their families through artificial conception and surrogacy, the involved parties must understand their obligations and the implications of their parenting decisions.
The San Diego Divorce Attorney works with couples, helping them understand the legal issues such as agreements, parentage, and stepparent adoption. We help you and your partner deal with legal issues or place measures to handle problems that arise in the future.
Call us at 858-529-5150 for a consultation.