Paternity Law: Sperm Donors, Surrogate Mothers and Child Custody

Introduction

The use of third-party reproduction has been practiced for over a century.¹ With the advancement of assisted reproductive technologies in recent years, the market for assisted reproduction has increased with many individuals and couples turning to third party donors to receive gametes.² Depending on the process used to procure the donated gamete, the recipient may or may not know the identity of the donor.³ To receive donor gametes, recipients have the option of using agencies or clinics, close friends or relatives, or even complete strangers located through advertisements in publications or online.⁴ While minimally regulated, obtaining donor gametes through traditional clinics and sperm banks requires some protocol; in contrast, “buying sperm over the internet … is not much different than buying shoes.”⁵

Artificial Insemination

One of the first documented cases of donor insemination occurred in 1884 when a married couple struggling with male infertility consulted Dr. William Pancoast, a physician and medical school professor.⁶ Without obtaining the couple’s consent or informing them of what he was going to do, Dr. Pancoast anesthetized the wife and inseminated her with the sperm of the “best looking member of the [medical school] class.”⁷ The procedure resulted in a successful pregnancy and subsequent birth.⁸ Although the husband was eventually informed of the procedure, the wife was never told that her husband was not the biological father of the child.⁹

Although artificial insemination in humans was possible in the late nineteenth and early twentieth centuries, it was not socially acceptable and women undergoing the procedure were often considered to have committed adultery and their children were perceived as illegitimate.¹⁰ In the 1960s, states such as Georgia and California began to recognize donor-conceived children as legitimate, and in 1973 the Uniform Parentage Act (UPA), a model statute that may be adopted on a state-by-state basis, recognized the paternity of husbands who consented to their wives’ artificial insemination.¹¹ As first promulgated in 1973, the UPA addressed artificial insemination only in the context of married couples.¹² The husband rather than the sperm donor was legally recognized as the natural father of a child conceived through artificial insemination so long as three conditions were met: the artificial insemination was conducted under a physician’s supervision; the husband gave his written consent; and the physician filed the consent with the state health department.¹³ By 1998, thirty states had adopted the UPA or a similar statute, with fifteen states eliminating the requirement that the procedure be supervised by a licensed physician.¹⁴

While the UPA did address certain situations involving donor-conceived children, it did not address the rights of divorced fathers, the standing of non-marital fathers to sue for parental rights, the parental status of sperm donors when the recipient was unmarried or was not inseminated under the supervision of a licensed physician, or parentage issues surrounding surrogacy and gestational agreements.¹⁵ Ultimately, the UPA applied only to children conceived through artificial insemination performed by a licensed physician on a married woman.¹⁶

In 2000, the UPA was revised to remove the physician supervision requirement and include procedures conducted on non-married women to “provide certainty of nonparentage for prospective donors.”¹⁷ It clarified that donors could not sue to establish parental rights or be sued and required to support the resulting child. The revised UPA essentially eliminates donors from the “parental equation” and states that sperm donors are not legal parents if conception occurs through artificial insemination and the donor does not intend to become a parent.¹⁸ However, the revised UPA still allows a donor to contest paternity if he can prove that he lived with the child within the first two years of the child’s life and considered the child to be his offspring.¹⁹ However, few states have adopted the revised UPA to date. While most states do have laws that remove paternal rights from anonymous sperm donors and give them to the intended parents, those statutes generally do not apply if the woman is not married or a physician is not involved in the process.

Many courts are reluctant to deny parental rights to known sperm donors if they request them.²⁰ In Jhordan C. v. Mary K., the court awarded paternity rights to a man who donated his semen to inseminate an acquaintance.²¹ The woman performed the insemination herself at her home and not under the direction or supervision of a licensed physician.²² After the child was born, the donor demanded monthly visits with the child and the mother reluctantly agreed. The donor later filed an action to establish paternity and visitation rights. The court ruled in the donor’s favor, determining that the donor’s parental rights were not extinguished under the applicable state statute because a physician was not involved and because the donor’s regular visits with the child established that the donor and woman acted as if the donor had some familial status with respect to the child.²³ The parties in the Jhordan C. and Mary K. case did not reduce their arrangement to a writing. Therefore, the court looked to the parties’ actions to construe the intent of the arrangement.

Even in instances where the parties agree on parentage ahead of time, contracts that explicitly preclude rights for known sperm donors are not necessarily enforceable.²⁴ In Kansas v. W.M., a same-sex couple solicited a sperm donor through Craigslist.²⁵ The parties signed an agreement whereby the donor relinquished his paternal rights to the child. The couple performed the insemination in their home resulting in pregnancy. Prior to the birth of the child, the couple separated and the birth mother applied for benefits with the Kansas Department of Children and Families (“DCF”). After the birth of the child, DCF filed a petition to declare the sperm donor as the natural father of the child and sought an order for child support and a judgment for payment of medical expenses to DCF for past benefits. Under the Kansas Parentage Act, much like the original UPA, a sperm donor is not deemed the natural father of a resulting child only if the semen is provided to a licensed physician for artificial insemination and the woman is married.²⁶ Here, the court determined that despite the written agreement to the contrary, the donor was the natural father because the insemination was not conducted through a physician and the woman involved was not married. Therefore, the donor was liable to DCF for child support and past benefits.

Like Kansas, Missouri only exempts paternal rights for a sperm donor if he donates to a married woman and the insemination is conducted under the supervision of a licensed physician.²⁷ Because there are no decisions on point, it is unclear how Missouri courts would interpret the statute with respect to child support or paternal rights. In contrast, Illinois law provides that a sperm donor is not the natural father so long as the sperm is provided to a licensed physician for artificial insemination to a woman other than the donor’s wife.²⁸ The woman undergoing artificial insemination does not have to be married. The Illinois Court of Appeals has interpreted the statute such that an anonymous sperm donor responsible for artificial insemination of a child is not entitled to be treated as the child’s natural father and therefore has no paternal rights.²⁹

In sum, the laws governing paternity of sperm donors vary widely across the country and in many states are untested by the judicial system. Because many of the applicable state statutes predate the recent rapid advancement in assistive reproductive technologies, current laws and the courts’ interpretations of those laws may not accurately reflect the intent of the parties involved. Therefore, parties considering donating sperm or using donor sperm for artificial insemination are cautioned to carefully consider the legal implications and consult an attorney who is familiar with parentage laws to ensure that the appropriate parties are deemed the legal parents of the child.

Surrogacy

Since it began over a decade ago, surrogacy has become a viable alternative means of reproduction and is utilized by an increasing number of infertile and same sex couples. With increased use, surrogacy arrangements are also becoming more socially acceptable. But many controversial issues surround surrogate motherhood. The surrogate mother’s desire to keep the child is only one of the many ethical and social issues involved in surrogacy arrangements. Other issues include: moral beliefs regarding the right to have one woman bear a child for another, the enforceability of a surrogacy contract, proper payments to the surrogate mother, and how to decide custody of the child if a dispute arises.³⁰ The law of surrogate motherhood in the United States is in a state of flux and confusion. States have widely differing laws, some enforcing surrogacy contracts, some banning them entirely, and some allowing them under certain circumstances. Many states have no laws regarding surrogacy contracts at all. As a result, courts are often left to decide parenthood disputes arising from these contracts, and employ a range of legal theories by which to do so: intent, contract, genetics, gestation and rarely, best interests of the child.³¹

History of Surrogacy Law in the United States

There are two types of surrogacy: traditional surrogacy and gestational surrogacy. A traditional surrogacy arrangement occurs when a couple contracts with a surrogate mother to have the intentional father’s sperm artificially inseminated into the surrogate. In traditional surrogacy, it is clear that the surrogate is the biological mother of the child and so she does have parental rights to the child.³² Such reasoning led to decisions such as the Baby M. case, discussed below. The second type of surrogacy, called gestational surrogacy, can take place several ways. The intentional mother can use her own egg and the intentional father will use his own sperm, and the embryo, which is fertilized outside of the womb, will then be transplanted into the uterus of the surrogate mother.³³ In this case, the surrogate is not genetically related to the child.³⁴ Other options include using the intentional father’s sperm and the egg of an anonymous donor or using both sperm and egg donors to create the embryo that will be implanted in the surrogate. This variant on surrogacy eliminated the birth mother/genetic mother equation, and led to litigation disputing the child’s parentage.³⁵

The United States, unlike many countries, has no national policies governing assisted reproductive technology, including surrogacy. State laws vary widely from one state to the next. Several states expressly prohibit it, declaring all such agreements void and unenforceable as a matter of public policy. A few even make it a crime to pay for surrogacy. Other states allow it but restrict its use to married couples or to cases in which at least one of the intended parents has a genetic link to the child. And a handful of states have been very open to the use of reproductive technology and have allowed it to flourish.³⁶

But a majority of states, including Missouri³⁷, have no laws directly addressing the enforceability or legality of surrogacy, leaving many such arrangements in legal limbo and raising a number of social, legal and ethical issues involving parenthood, the best interests of children, and the rights of same-sex couples and other nontraditional families for the courts to resolve.

The Baby M. case first brought widespread attention to the procedure and the possible legal complications that surrogacy can entail.³⁸ The case arose from a contract entered into in February 1985 by William Stern and Mary Beth and Richard Whitehead, which recited that Whitehead, in return for a $10,000 fee, agreed to be inseminated with William’s sperm, become pregnant, bring the child to term, bear it, and then relinquish parental rights and deliver the child to the Sterns, whereupon Elizabeth Stern, William’s wife would formally adopt it. The contract also recited that the Sterns would pay a $7,500 fee to the Infertility Clinic of New York, which had arranged for the surrogacy. Both Sterns very much wanted children, however: at first they considered adoption, but became discouraged at the delays involved, and the possible difficulties they might encounter due to the difference in their ages and religious backgrounds. Because of these concerns, they responded to an ad for the Infertility Clinic of New York, an ad to which Whitehead also responded.³⁹

The insemination was successful. Whitehead became pregnant and gave birth to a baby girl on March 27, 1986. On March 30, she turned the baby over to the Sterns at their home. Whitehead began to have second thoughts, however: she appeared at the Stern’s home the next evening severely distraught, begging to take the child for one week after which she promised to surrender her. The Sterns, concerned that Whitehead might commit suicide and taking her at her word, allowed her to take the child. The Sterns brought a complaint seeking that the surrogacy contract be enforced, i.e., that the child be permanently placed with them, that Whitehead relinquish her parental rights, and that Mrs. Stern be allowed to adopt the child. The trial court found the surrogacy contract to be valid, and ordered compliance. A large part of the basis for the trial court’s decision was based on the view that custody with the Sterns was in the child’s best interests. Whitehead appealed. The New Jersey Supreme Court declared surrogacy contracts void against state public policy but then determined that the best interests of the child born to the surrogate mother required that custody of that child be awarded to the biological father and his wife.

Various State Laws Resolving Parenthood Disputes Arising from Surrogacy Contracts

In the almost thirty years since the Baby M case, there has been little resolution of the controversy surrounding surrogacy and similarly little resolution of the legal status of such arrangements. Most states have unclear laws governing surrogacy agreements. Nevertheless, they can roughly be grouped into six categories, reflecting the degree of restriction they impose on surrogacy agreements.⁴⁰ Ranging most favorable to most restrictive, there are states that: (1) hold surrogacy agreements valid and enforceable, (2) have unclear statutes but favorable case law, (3) explicitly allow surrogacy agreements but regulate the market, (4) have unclear statutes and no case law, (5) hold surrogacy agreements void and unenforceable, and (6) prohibit and/or penalize individuals entering such agreements, sometimes under threat of heavy fines and jail time.⁴¹ Most states fall in the middle, and most do not have statutes that address the validity or legality of surrogacy contracts.

Some states prohibit surrogacy contracts, whether compensated or not, and impose both civil and criminal penalties on anyone taking part in such contract. For example, Arizona’s statute states that a surrogate is “the legal mother of a child born as the result of a surrogate parentage contract and is entitled to custody of that child.”⁴² Despite the fact that the Arizona Appellate Court ruled this statute unconstitutional because it denied the genetic mother equal protection, it has not been repealed. Other states ban enforcement of surrogacy contracts, thereby presumably also making the surrogate the legal mother of the child.⁴³ Many states, like Missouri, have simply failed to pass laws addressing the issue.

Despite the explosion of the surrogacy market, very few states have changed their laws in recent years. One exception is Ohio, where the State Supreme Court held in 2007 that a gestational surrogacy agreement prohibiting surrogates from asserting parental rights did not violate public policy.⁴⁴ The varying state of the law comes down to two questions: (1) will the surrogacy contract be enforced and will the surrogate be forced to comply with the requirement that she relinquish parental rights and (2) may the surrogate receive compensation other than coverage for the expenses associated with gestation.

Given the growing prevalence of surrogacy as a serious option for infertile couples and same sex couples, the lack of political action is alarming. While most states leave it to the courts to rule on the enforceability of surrogacy contracts, courts may be ill-equipped to appropriately set policy on such a complicated issue.

Biography

Lisa Luetkemeyer (left) is an Associate and member of the Healthcare, Life Sciences & Pharmaceuticals industry team at Husch Blackwell LLP in St. Louis. Kimela West (right) was an Associate and member of the Healthcare, Life Sciences & Pharmaceuticals industry team at Husch Blackwell LLP and is now in-house counsel for Mercy Health Systems in St. Louis. The Firm acts as outside general counsel to the Missouri State Medical Association. The information contained in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and readers are encouraged to consult their own attorney regarding specific legal questions.

Contact: lisa.luetkemeyer@huschblackwell.com