“We seldom realize, for example that our most private thoughts and emotions are not actually our own. For we think in terms of languages and images which we did not invent, but which were given to us by our society.” – Alan Watts

A major part of how we control society and establish rules is through our usage of terminology and definitions. Everything is the world is based off a previous or the new creation of a definition for a word that someone else created. This also means that people have the power to try and change these definitions. When thinking about it, even this paper is completely based on others definitions for pre-existing words.

Now what role do those words and definitions have in family law? Artificial reproduction technology has been rapidly evolving for the past 30 years. So many events from genetic gene-replacement to the legalization of same-sex marriage have happened since 1990. These events have molded what happens in society, however, our terminology has not evolved with it.

There needs to be an increase of laws surrounding artificial reproduction due to the lack of a consistent definition for what a parent is, and also what a parent’s obligations are, leading to monetary loss, avoidable use of legal resources, and loss of the best interest of the child. These issues can be seen throughout court cases, sperm donor guides, and legal books.

Defining Parent

When trying to find the legal definition of parent, people are often are left confused and lost in websites and books of terminology. There is no standard legal definition of “parent” that the United States agrees on. Often times terms are split into code names such as “legal parent”, “biological parent”, “non-biological parent”, “surrogate parent”, “legal guardian”, and “adoptive parent”. These terms are often used interchangeably, which can further the frustrations of individual’s trying to find their way through parental and family law. The definitions surrounding who is parent need to become consistent throughout all state and federal law. When you attribute where certain terms belong, and the rights those terms hold, you eliminate the large part of lawsuits that handle clarity around terminology.

Due to social norms, we often view parents as direct, biological individuals who conceived and take care of the child. However, this leaves out adoptive parents, non-gender confirming parents, or individuals involved in artificial reproduction. To expand on artificial reproduction, there is no real legal consideration for the role surrogates and sperm donors play in fertility. In some states, they are viewed as equal to the parents whereas in other states, all legal rights are waved away automatically. This freedom surrounding the term may be viewed as good since it doesn’t openly restrict who or what a parent is, however, it restricts the amount of people that may want to become a surrogate or sperm donor out of fear of legal implications. It may also push childless couples away from using assisted reproductive technology.

Children’s rights are often left out of the discussion surrounding artificial reproduction. While the United States works towards the rights of children through the Uniform Parentage Act, this often leaves larges gaps where children can still be treated inadequately. The emotions, trauma, and moving often faced by these “babies of technology” are discarded. While these parents and lawyers face potential monetary loss, these children are displaced from the homes they belong in. This physically slows or prohibits human connection, learning skills, and emotional development[1]

Anna Johnson Vs. Mark Calvert et al.

Gestational surrogacy has been a huge area for legal evolution. Two large court cases revolved around the parental rights of all the individuals involved. Anna Johnson Vs. Mark Calvert et al. took place at the Supreme Court of California in 1993. This case brings up the argument of who is the “natural mother”. This is due to the fact that while the husband and wife are genetically related to the child, the surrogate carried and gave birth to the child. The couple, Mark and Crispina, wanted a child but could not have one due to Crispina’s hysterectomy. She was able to produce eggs though, so a friend of a friend, Anna decided to be their surrogate. A contract was signed that agreed Anna would be paid 10,000 during the last six weeks of pregnancy, along with a $200,000 life insurance policy. Over the course of the pregnancy, communication worsened, especially once Mark discovered that Anna had a history of miscarriages and stillbirths. This led into a larger argument where Anna demanded the couple pay the money sooner than six weeks or else, she would keep the child. This is once it was brought to the court system. After a few months of legal battle, it was determined that the even though the surrogate carried the child, the biological parents were the “natural parents” who had full rights to the child. Anna had no parental rights to the child, and the original contract was valid. This ended with the child being placed with the biological parents, and Anna’s visitation rights being fully terminated.[2]

This case brought up many conversations about how we define parents, and what parental rights can be given. A lot of people argued that by ruling the biological parents were the only valid parents, you neglect the emotional and physical aspects of pregnancy that the surrogate underwent. The increase in gestational surrogacy has brought an increase of legal issues along with proposed solutions.[3] The only California statue at the time was Uniform Parentage Act which determined what parental rights you had. A model legislation proposed by the National Conference of Commissioners on Uniform Laws, which precisely defines each person’s parentage. This away from the “child’s best interest” routine, which usually was used. They took away from the focus from innocent kids and placed it onto the parent[4]

Another legal case is the Petition for Writ of Certiorari, TB and DB v PM and CM. The gestational surrogate and baby she had, have their rights revoked by the genetic mother of the child. It is argued that the surrogate played a key role in helping the child survive for the first 11 weeks they were alive. The first ruling favored the genetic mother originally, disregarding the emotional attachment the birth mother formed to “Baby H”. However, the final ruling decided the opposite, stating, “It was always the actual relationship between a parent and child which was protected as a liberty, not genetics alone.” They decided that T.B.’s Petition for Certiorari should be granted. This was a huge breakthrough in the rights of birth mothers involved in gestational surrogacy.[5]

We can see through these two supreme court cases, that there are truly legal gaps surrounding gestational surrogacy. These terms “natural” and “biological” are the basis for these laws instead of the child’s best interests took. This leads to the children sometimes being placed into environment’s that are lacking. This also causes all individual’s extreme stress, because they are unsure what the court will decide. These gaps are also harmful because it takes up the court systems resources. With more refined laws, there would be less cases needing to be sent to higher court; these cases often go on for weeks to months taking up a large amount of time and energy while displacing the child.

Davis v. Davis

This leads into another well-known court case, Davis v. Davis. This case involves a dispute between a divorced couple, Mary Sue Davis and Junior Davis. Mary wanted control over the frozen embryos the couple had housed at a Knoxville fertility clinic. She planned to still have a child post-divorce however, Junior felt uncomfortable and wanted to be able to decide if he would be a parent or not. Due to the frozen embryos being considered human beings, custody was granted to Mary and she had the choice to carry them to term through implantation. The Court of Appeals decided to reverse this decision as Junior was constitutionally protected to not father a child as no pregnancy took place. It was also argued they both parties had equal stakes in the embryos. As time goes by, Mary submits a petition and the case is re-evaluated. This time around, both parties are remarried and live away from each other. Mary wants to donate the embryos to a childless couple, but Junior still argues that he has the right for those embryos to stay untouched. The final decisions decide that the embryos will remain untouched and that the Knoxville fertility clinic may use whatever normal policy they have when handling unused embryos.[6]

There are two large issues with this case. First, it is automatically assumed the mother of the embryos would be best fit to be the parent, with little discussion of why. Maternal relations often outweigh paternal relations without immediate concern for the child’s wellbeing. Second, there is no law pertaining to divorce and custody rights of frozen embryos. While this wasn’t a huge issue back in 1992, as the years increase, these issues will reoccur due to the adapting technology. If we figured out proper laws to regulate custody in IVF cases, stress would be taken off of the fertility clinics and couples to fix these issues.[7]

Artificial insemination and sperm donation are some of the oldest ART methods. While this time has allowed the laws to grow and adapt, issues still exist in the field. When viewing the new guidelines for the use of sperm donor insemination in 1990, its clear the social difference compared to 2019. Because our social norms are constantly adapting, the stigma surrounding artificial or sperm donor insemination has faded. This opened up an area for society to grow, however legally, the laws are still lagging behind the rest.

In 1990, the reasons for allowing sperm donor artificial insemination to happen were based on the husband being infertile due to vasectomy, is oligospermic, or another non-correctable ejaculatory dysfunction. Also, if the husband had a known hereditary or genetic disorder. While these conditions have loosened to allow a wide variety of people to acsess artificial insemination via donor sperm, many of the other problematic rules have not changed. In many states, it is still required that the husband sign the agreement papers for the wife to have a donor’s sperm inseminated. This removes the power from the wife’s choice, by making it dependent on her husband. [8]

Christopher YY. v. Jessica ZZ.

Also, not all states have the same laws surrounding artificial insemination via sperm donor and parental rights. While most states and sperm banks have you sign a contract giving up all your parental rights, there are places such as New York where this does not hold true. New York is often viewed as one of the states with almost no parental laws. There is no rule present in the state of New York that mandates how to cut parental ties with a sperm donor. The way the law was set-up made it so only married women with consenting husbands who had artificial insemination take place in a hospital could cut ties with a sperm donor.[9] However, the case Christopher YY. And Jessica ZZ. Challenged these standards. Jessica ZZ. and her wife, Nichole ZZ. were a lesbian married couple who conceived a child through informal artificial insemination which took place as Jessica’s home with sperm that was donated by Christopher. They both signed contracts agreeing Christopher had no parental ties, as well as that Jessica could not sue for child custody; these contracts were not looked over by a legal advisor and were not notarized in any format. A few months after the birth of the child, Christopher finally met the baby and decided to file for paternity and custody of the child. Christopher’s partner in sworn testimony also disclosed to destroying the only of the agreement. After a long legal battle, it was agreed that the couple was entitled to the presumption of legitimacy afforded to a child born to a marriage as the two women were married before the birth of the child, and present in the child’s life. [10]

This ruling was a huge change for how New York handled parental cases involving same-sex couple. It is unacceptable that New York did not adjust or make any clarifications to previous laws that would allow for the inclusivity of same-sex couples. Instead, they were forced to fight a legal battle without any form of legalized contract as New York does not require one, nor do they assume that sperm donors give up their parental rights.[11]

The field of sperm donation is also still very homophobic and bi-phobic by not allowing men who have had gay sex in the past five years to donate sperm. By labeling these groups as “high-risk” continues to reinforce the negative stereotype that non-heterosexual men are dirty or all have diseases.[12] Diseases such as HIV and AIDS can be acquired by any gender or race, however, people still want to pin the blame on non-heterosexual men for them due to the AIDS crisis. This also brings up the issue of non-binary or non-gender confirming individual’s and how they can claim parental rights.  [13]

The issue of race, gender, and sexuality in assisted reproductive technology is still very present. Most commonly experienced in gestational surrogacy and artificial insemination, the struggle to define who is the “natural parent” and whether or not biological equals natural is reoccurring. It becomes even more difficult once non-gender confirming individuals are involved. Since trans-sexualism was viewed as a mental illness called gender identity disorder, this made Transgender people be viewed as unfit to be parents. This left transgender individuals with few options to reconceive, especially because religiously, they may not be viewed as morally fit. Since family law is very binary, men and women terminology, this excludes and leaves a legal gap for those who are non-binary or genderless.[14]

Cramblett Vs. Midwest Sperm Bank, LLC.

Cramblett Vs. Midwest Sperm Bank, LLC. was an infamous legal case that handled the topic of racial preference and eugenics. This situation formed when a lesbian couple decided they wanted to have a child through artificial insemination of a sperm donor. When choosing a sperm donor, they had decided that as a white couple, they wanted to have a purely white child. An error in handwriting led to the sperm bank misreading that they requested a “white coded” sperm donor. Mrs. Cramblett ends up being inseminated with “African-American” coded sperm causing her to become distraught and angered. She felt she could no longer have the child if it were mixed. She also believed the child would tear the family apart and that they were incapable of treating the child properly due to the ethnicity. [15] Many viewed the lawsuit as a way to say that they supported eugenics and a segregated lifestyle.

This case really solidified that no matter how progressive of a society we become, there are people who still believe keeping the races and ethnicities separated is best, even when data disproves it. We see this idea of mono-racial families, sometimes referred to as “purebred families”, supported to this day from larger sperm banks such as the Sperm Bank of California. They have a whole section of their website dedicated to explaining and convincing couples to choose sperm which matched their racial ethnicity. This was to keep families as mono-racial as possible, so that the child didn’t feel unwelcomed.[16] They never take into consideration that mixed families exist with no issues surrounding the child’s identities, as long as they are informed and loving towards the child still.[17]

One of the most prominent sources that serves as a guidance through assisted reproduction law is the American Bar Association’s book, “Assisted Reproductive Technology: A Lawyers Guide to Emerging Law and Science”. The whole realm of assisted reproductive law is summarized within 400 pages. A key point it brings up is how difficult it is to work in reproductive law. Because the law and technology are consistently changing, the need to keep up with media and new regulations is mandatory. Within that, many cases handle individuals from the legal parties that are from other states where the lawyers serving on the case may not have full jurisdictions. This makes it much harder to find a lawyer applicable to working on the case. Lastly, because it is so hard to keep up with the modern changes, there is an increased chance of mistakes from the lawyer’s side, meaning they have increased liability. This is the last thing lawyers want, as they are trying to keep their own liability as low as possible to keep high-standing credentials. This adds up to the argument that few lawyers are willing to work in the field, slowing down the progress in the laws. When there are no lawyers to fight for change and defend previous rights, you have no progress.[18]

Conclusion

Overall, there are a lot of legal challenges being faced in the realm of artificial reproduction law. The fact there are no laws surrounding major topics such as parental rights and custody, is harmful to everyone involved. This also leads to discrepancy in legal decisions, where some cases will side with the plaintiff and other with the defendant. The lack of consideration for the emotional connection surrogates may have with the child, as well their physical energy put into pregnancy is a problem area in the law. Along with this, is the increasingly blurry lines for parental rights.

Many of the justifications for arguments against assisted reproduction are based in personal opinion. Women’s reproductive rights have been consistently influenced by the morals of those in power. In times where we see the Republican party take control, we see a limitation surrounding women’s rights. This may be due to the fact that conservatives often view their religious choices and morals are superior to others beliefs. There have never been answers to what truly is morally right and wrong because not everyone follows the same beliefs. This leads to laws still being outdated for thirty plus years. A lot of these parental and custody laws are affected by assisted reproduction because the laws were written for only married heterosexual couples.[19] These discount other types of couples as abnormal; many religious organizations have claimed that children created and raised by non-heterosexual couples will also end up non-heterosexual and are already sinner at birth.[20]  When you begin to base the rules of society in morals, is when you begin to give the power to those with enough privilege to be able to safely voice their opinions.

Overall, the legal area surrounding assisted reproduction is still blurry. Walking down any wrong path can lead to months of unjustified and justified legal battles, and more years with a child who has been a part of the process. These situations alter families for the rest of their lives, you are not only affecting the adult parties, but the children who will grow up with barley any recollection of what their families went through to try and keep them safe. While these angered lawsuits often come from a place of love and wanting the best for the child, they reinforce inappropriate and vengeance fueled behavior at times. While restriction does come with setting a consistent legal term for “parent”, we also place such an importance of parenthood on society. Why do we continue to the pressure to be good mothers and fathers, when we don’t even give them the legal safety to do so? The restriction is worth the resources we waste and innocent children we affect through these continuous lawsuits. Once we correct, widen, and standardize the term across all states, we will see the improvement and increase in the assisted reproduction technology field.

 

Works Cited

[1] Mason, Mary Ann., and Tom Ekman. Babies of Technology: Assisted Reproduction and the Rights of the Child. New Haven: Yale University Press, 2017.

[2] Johnson v. Calvert, 851 P.2d 776, 5 Cal. 4th 84, 19 Cal. Rptr. 2d 494 (1993).

[3] Shenfield, F., G. Pennings, J. Cohen, P. Devroey, G. De Wert, and B. Tarlatzis. “ESHRE Task Force on Ethics and Law 10: Surrogacy.” Human Reproduction 20, no. 10 (2005): 2705-707. doi:10.1093/humrep/dei147.

[4] Luetkemeyer, Lisa, and Kimela West. “Paternity Law: Sperm Donors, Surrogate Mothers and Child Custody.” Missouri Medicine. May/June 2015. Accessed April 18, 2019. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6170122/

[5]United States. Supreme Court of United States. Supreme Court of Iowa. 2016. Accessed April 17, 2019. https://www.supremecourt.gov/DocketPDF/17/17-1631/48842/20180531161311504_TB and DB v PM and CM Petition for Writ.pdf

[6] Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992)

[7] Nardelli, Alexa A., Tania Stafinski, Tarek Motan, Kristin Klein, and Devidas Menon. “Assisted Reproductive Technologies (ARTs): Evaluation of Evidence to Support Public Policy Development.” Reproductive Health 11, no. 1 (November 07, 2014): 1-14. doi:10.1186/1742-4755-11-76.

[8] New Guidelines for the Use of Semen Donor Insemination: 1990. Birmingham: American Fertility Society, 1990.

[9] New York Code Section 8-122

[10] MATTER OF CHRISTOPHER YY. v. JESSICA ZZ., 2017 N.Y. Slip Op 65136 (App. Div. 2017).

[11] Ibid 9.

[12] New Guidelines for the Use of Semen Donor Insemination: 1990. Birmingham: American Fertility Society, 1990.

[13] Wert, G. De, W. Dondorp, F. Shenfield, P. Barri, P. Devroey, K. Diedrich, B. Tarlatzis, V. Provoost, and G. Pennings. “ESHRE Task Force on Ethics and Law 23: Medically Assisted Reproduction in Singles, Lesbian and Gay Couples, and Transsexual People.” Human Reproduction 29, no. 9 (July 22, 2014): 1859-865. doi:10.1093/humrep/deu183

[14] Ibid.

[15] Cramblett Vs. Midwest Sperm Bank, LLC. Supreme Court of Ohio, 2014.

[16] “Donor Ethnicity, Your Family and Your Future Child  .” The Sperm Bank of California. Accessed June 07, 2019. https://www.thespermbankofca.org/tsbcfile/choosing-ethnicity-my-donor

[17] Ahmed, Aziza. “Race and Assisted Reproduction: Implications for Population Health.” FLASH: The Fordham Law Archive of Scholarship and History. 2018. Accessed April 18, 2019. https://ir.lawnet.fordham.edu/flr/vol86/iss6/15/

[18] McBrien, Maureen, and Bruce Hale. Assisted Reproductive Technology: A Lawyers Guide to Emerging Law and Science. Chicago, IL: American Bar Association, Section of Family Law, 2018, 5.

[19] McBrien, Maureen, and Bruce Hale. Assisted Reproductive Technology: A Lawyers Guide to Emerging Law and Science. Chicago, IL: American Bar Association, Section of Family Law, 2018, 5-18.

[20] Lee, Ian B., Trudo Lemmens, Andrew Flavelle Martin, and Cherly Mine. Regulating Creation: The Law, Ethics and Policy of Assisted Human Reproduction. Toronto, Buffalo, London: University of Toronto Press, 2017.