Assisted reproduction takes a dazzling array of forms. Sperm donors, egg donors, womb donors – pick one, two, or three to make a custom solution to solve your personal fertility problems. Unfortunately, if not done right, the solution to your fertility problems could be the beginning of a nightmare of legal problems as you fight for the custody of your child.
The problem is two fold. First, assisted reproduction often involves crossing state lines. For example, a couple in New Jersey may go to a fertility clinic in New York that uses a donor egg from a woman in Connecticut that is brought to term in a surrogate womb by a woman in Massachussets. Which state’s law applies? The problem can become even more complicated when one realizes that not every state has laws that are favorable to assisted reproduction.
Second, the law often still uses tradition family models in its approach to family law, preferring to keep the baby with the “biological” parents in the event of a dispute. A famous example that made national headlines is the case In re Baby M. There, the surrogate mother, who supplied both the egg and the womb, decided she wanted to keep the baby in spite of the surrogacy agreement. The result was split custody between the intended parents and the surrogate parent. Although the laws of each state have evolved considerably since then, the legal dangers of assisted reproduction still remain.
Another issue is the comparative speed between the advance of new technology and the law. Generally, technological development moves far faster than the legal system. By the time the legal system decides how to handle the issues related to a specific fertility treatment, the industry has already moved on to new fertility treatments that were not dreamt of in the law.
What is a couple seeking to start a family to do? The best advice is to consult an experience family lawyer. In addition to helping you consider all options, such as adoption, your lawyer can also tell you about the legal status and risks associated with various fertility treatments, and guide you through the process, including creating solid legal contracts between you and those who are helping you with you create your new family.