The process of conceiving a child with the assistance of a “third party” is referred to as third-party assisted reproduction (or collaborative reproduction). The third party assisting in child’s conception may be a person acting as a surrogate (or gestational surrogate or carrier); a gamete donor (sperm or egg); or an embryo donor. If you choose to have a child through egg, sperm or embryo donation, some of the important legal considerations you should be aware of are discussed below.
Many single people, same-sex couples and infertile couples conceive their children with the use of donated gametes or embryos. The benefits of this process are that it provides at least one of the intended parents with the opportunity to have a genetic connection to the child. While there are wonderful practical advantages to this process, there can be legal complications if critical steps are not taken to ensure that the donor(s) have no parental rights or responsibilities for the child conceived with their gametes/embryos.
Obtaining donated gametes from an egg or sperm bank, or from an IVF Clinic, eliminates many of the potential legal risks because the donor will have signed documentation at the medical facility releasing them from any parental rights or obligations for the child born from their donated genetic material.
There is a growing trend in favor of using known gamete/embryo donors both because it provides intended parents with greater assurance that the donor has provided reliable biographical information and also because it provides the opportunity for the child to have a personal relationship with the donor. Whether you choose to use a known egg or sperm donor or one selected through a matching entity, you’ll need to enter into an egg, sperm or embryo donation agreement. These agreements are essential because they lay out everyone’s expectations and, depending on your circumstances, the agreement will likely be important to obtaining a court order securing your legal relationship to your child. Those who have gone through the detailed process of reviewing these agreements with legal counsel are also better informed about their rights and obligations throughout their family building process.
Some of the issues addressed in the Donation Agreement include:
In addition to the donation agreement, it’s often a good idea to also obtain a court order recognizing the intended parents’ exclusive parental relationship to the child.
It is important for you to consult with experienced counsel to determine what further legal action is recommended to ensure that: 1) the parental relationship between the child and non-biologically related parent is legally secured and 2) the potential legal relationship between the donor and child is formally terminated.
If you are a same-sex couple in New York who conceived a child through assisted reproduction, you have the option of obtaining either an Order of Adoption (see discussion here) or a Judgment of Parentage. The benefits of the Judgment of Parentage process is that it’s much less intrusive, faster and cheaper than the adoption process. There’s no need for you to provide the court with a homestudy, for you to undergo criminal or child abuse clearances or for you to provide the other documentation required in a typical adoption proceeding. In a Judgment of Parentage proceeding, the only issue before the court is whether the intended parents jointly conceived the child using gametes provided by a donor.
When the intended parents are married, both will be named as the child’s parents on the birth certificate. However, it’s important to know that being married to the child’s mother, and/or named as a parent on your child’s birth certificate, may not fully protect your legal relationship to your child in the event of a challenge outside of New York or New Jersey. That’s because many states don’t apply the marital presumption of parentage in a gender-neutral fashion to same-sex married couples. However, because of the “Full Faith and Credit Clause’ of the United States Constitution, obtaining a court order, declaring both of you to be “parents” should ensure that your parental relationship to your child will be recognized throughout the United States.
While we understand that having to undergo a legal proceeding to secure your parental rights may seem like an unnecessary cost and inconvenience, particularly at a time when you simply want to enjoy your child, there is little doubt that the benefits to be derived are worth it.
In both New York and New Jersey, the spouse of the person giving birth to a child conceived through donor sperm/embryos has the right to be named a parent on the child’s birth certificate. New Yorkers also have the right to sign a Voluntary Acknowledgement of Parentage (AOP) form at the hospital regardless of whether they’re married to the parent who gave birth. Signing the AOP form at the hospital will serve to secure your legal relationship to your child. However, because there are a number of grounds upon which the validity of an AOP can be challenged, it’s still a good idea for intended parents to also obtain either an Order of Adoption or a Judgment of Parentage. Nevertheless, the ability to sign an AOP will protect the large numbers of families lacking financial resources or the forethought to petition the court for a judgment of parentage or adoption.
