Assisted Reproductive Technologies or ART is the umbrella term used for medically assisted conception, pregnancy and birth.  It is used to treat both male and female infertility, by couples with high genetic risk of transmitting certain diseases, and by same-sex couples wishing to have a child who is biologically related to one of the partners.  Collaborative reproduction is a subset of ART wherein a third party donates genetic material to create the child.

The oldest form of ART is assisted insemination using sperm from a donor.  It can be very low tech such as obtaining sperm directly from a known a donor and a using a turkey baster at home.  In a traditional surrogacy arrangement, the carrier provides the egg which is fertilized by the father’s sperm.  Both of these situations are relatively inexpensive, but give rise to significant medical and legal concerns.  In vitro fertilization or IVF allows an embryo to be created outside of a woman’s body and implanted into her body or the body of a gestational carrier for gestation.  If a gestational carrier is used, an embryo resulting from an egg and sperm of the intended parents, or a combination of donated sperm and/or eggs, is implanted.

Standard procedure for egg and sperm donation for use by a non-intimate partner involves testing for infectious diseases such as HIV, freezing for six month and retesting before release for use.  Federal law, effective May 25, 2005, imposes strict requirements on the testing, storage and transportation of human tissue, including that used in ART, to help prevent the transmission and spread of communicable diseases. Laboratories must be certified to perform testing and have appropriate FDA licenses.  As a result, the cost of such procedures is increased, but the medical risk substantially decreases.  The use of an anonymous donor also reduces, if not completely eliminates, the possibility that the donor will attempt to assert any parental rights.

Case law addressing custody issues of ART children have primarily arisen in the context of heterosexual couples. ¹ The courts were first confronted with ART in the 1950s with the advent of artificial insemination. In Anonymous v. Anonymous, 41 Misc. 2d 886, 246 N.Y.S.2d 1835 (1964), the court held that a husband who had consented to the insemination of his wife was the legal father of the child despite having no genetic link to the child. ²  Should it not follow then, that if a woman agrees with her partner that the partner will be inseminated using donated sperm, that the non-biological parent is nevertheless a mother of the child with all of the attendant rights and responsibilities?

In the infamous case of In re Baby M, 537 A.2d 1227 (N.J. 1988), the Court held a surrogacy contract void and decreed that the genetic father and the genetic mother, the surrogate, were legal parents.  However, custody was awarded to the father and the surrogate granted visitation rights. ³  Since Baby M, courts have generally found surrogacy contracts to be unenforceable because the surrogate is both the genetic and birth mother of the child. ⁴  The surrogate cannot contract to terminate her parental rights prior to a state’s adoption waiting period.  In Minnesota, a consent to adoption cannot be signed until 72 hours following the birth, and the birth mother then has ten business days to revoke.  Minn. Stat. § 259.24 subd.2a.

In cases challenging parentage in complicated collaborative reproduction cases, courts have looked to the reasoning in the early artificial insemination cases, focusing on the steps taken to create the child and intent in creating the child as presumptive parentage, rather that relying on strict genetic or birthing ties to the child.  See In re Buzzanca, 61 Cal. App. 4th 1410, 72 Cal. Rptr. 2d, (1998). ⁵

2. Intentional Parents

The Uniform Parentage Act was first proposed in 1973 and adopted in Minnesota in 1980. Minn. Stat. § 257.51 through §257.75.  Its purpose was primarily to determine paternity for child support purposes and end, to the extent possible, the distinction between “legitimate” and “illegitimate” children.  It has little application to determination of parent-child relationships created through ART.  The ability to separate genetics, gestation, and child rearing is incompatible with current law which relies on ‘natural’ biology to determine legal relationships.  The meanings of “mother” and “father” have been medically and socially altered.  The law lags far behind the scientific ability to create families.  This can result in difficult legal and ethical issues without a framework to specifically address them.

In 2002, a new UPA was proposed which encourages courts to focus on the precise relationship – genetic, biological, functional, adoptive -  as the basis of assigning parental rights and responsibilities. ⁶  The 2002 UPA precludes all donors of genetic materials, who do not intend to parent at the time of the donation, from claiming parental rights, while allowing the recipients of donated gametes or embryos, to establish their parental status on the basis of their written intentions and consent to parent. ⁷  Parenting intentions expressed in a written agreement, or even an informal agreement, using ART to procreate should be given the same deference as the act of sexual intercourse in determining parentage.  Assisted reproductive technologies demand that parenthood be determined by intention and not biology. 

Legislation on surrogacy and gestational carrier’s contractshas focused on the validity of the contract and not on the determination of parentage.  Articles 7 and 8 of the 2002 UPA seeks to address this deficiency by addressing parentage of children who are conceived through ART, not sexual intercourse.  The language of Article 7 § 106 permits courts to apply any of  the rules for determining paternity to determine maternity.  The state would recognize a voluntary acknowledgement of paternity or maternity, even if the parent were not genetically related to the child, upon submission of a signed declaration of compliance with the parentage provisions of Article 7.  Article 8 incorporates provisions from the 1988 proposed Uniform Status of Children of Assisted Conception Act to validate gestational carrier contracts. 

Minn. Stat.  § 257. 66  subd. 3 may provide some help in upholding a gestational carrier or surrogacy contract, including payment of money to the surrogate or gestational carrier.  A paternity judgment may require the appropriate party to pay all or a proportion of the reasonable expenses of the birth mother's pregnancy and confinement, lost wages due to medical necessity, provide health insurance during pregnancy and confinement, and provide health insurance coverage for the child.  Furthermore, a person's signed promise to furnish support for a child, growing out of an alleged parent-child relationship, does not require consideration and is enforceable according to its terms.  Minn. Stat. § 257.72.  The issue becomes what are the “reasonable expenses” of the pregnancy.

Unfortunately, Minn. Stat. § 257.541 prohibits actions to determine parentage prior to the birth of the child.  Intended parents prefer to have the determination made prior to the birth so that the birth record accurately reflects the parental status of the parties, and to insure that there are no misunderstandings by hospital personnel as to who are the legal parents of the child.  Since ART pregnancies have a higher percentage of being high risk, the latter can be especially important.

The judgment determining the existence of the parent-child relationship is determinative for all purposes.  If the judgment is at variance with the child's birth record, the court shall order that a new birth record be issued.  While this corrective measure is in place, the need for it could be eliminated by the issuance of a pre-birth maternity/paternity order.  Following issuance of the maternity or paternity order, vital statistics is required to prepare a replacement record of birth consistent with the acknowledgment or the findings of the court and substitute the replacement certificate for the original record of birth.   The evidence upon which the replacement record was made and the original birth record are sealed in a confidential file and subject to inspection only upon consent of the court and all interested persons, or in exceptional cases only upon an order of the court for good cause shown.  Minn. Stat. § 257.73.

There is a practical problem that current birth record information prepared at the hospital does not cover many ART situations.  Court administration clerks are not sure how to open maternity files, and hospital administrators need guidance on following court orders.

3.   Sperm Donors

Many people proceed informally based on a skewed understanding of their legal rights and liabilities.  Often, the understanding from the outset is that the man will not have a paternal role in the child’s life (beyond perhaps being identified to the child when he or she reaches majority) and will not assert parental rights (or will have them terminated).  Sometimes the parties envision ongoing contact with the donor, but at the discretion of the mother.  In general, however, the donor is only chosen from among other options based on an agreement that he will not seek to establish parental rights.

The use of an unknown donor is strongly advised to limit any problems with respect to parenthood.  In Minnesota, a provision in a donor agreement for voluntary termination of parental rights is, most likely, unenforceable.  Every private petition to terminate parental rights is review by the County Attorney.  Unless there is another person stepping forward to adoption the child, and as a result incur the obligation to support the child, the County will oppose termination. 

Even if unenforceable, written agreements should always be used in the case of a known donor to document the parties’ understandings.  After a child is born, the parties may profess different understandings of what the arrangements were, change the agreement formally or by conduct, or simply change their minds.  The donor may move immediately or later to assert paternity or block an adoption. A well drafted donor agreement can go a long way toward minimizing potential problems.  Basic contract law requires that the document be executed prior to the “donation”.  If it is the intention of a donor to retain some parental rights such as continuing contact with the child, he must comply with the Fathers Adoption Registry, Minn. Stat. § 259.52, to insure that his rights are preserved through a contact agreement as part of any adoption. 

The Minnesota court has addressed the rights of a known donor in LaChapelle v. Mitten, In re custody of L.M.K.O., 607 N.W.2d 151 (Minn. App. 2000), review denied (Minn. May 16, 2000), cert. denied, 531 U.S. 1011 (2000).  This case is discussed in Section 20.04 – of this Chapter.  In LaChapelle, the donor was allowed to establish paternity and granted visitation rights based on the parties’ written agreement.   

Genetic and Birth Mothers. Genetic and Intended Fathers

Minn. Stat. § 257.52 creates the presumption that the parent - child relationship between a child and mother is established by proof of her having given birth to the child.  Now it is possible for a woman to give birth to a child with whom she has no genetic link.

¹  See Determination of status as legal or natural parents in contested surrogacy births 77 A.L.R.5th 567.

² 42 states regulate artificial insemination and reach the same conclusion.  See Minn. Stat. § 257.56.   Similar logic should apply to oocyte donation without the need for adoption by a non-biological mother.

³  See Validity and construction of surrogate parenting agreement 77 A.L.R.4th 70.

⁴  Two states expressly ban surrogacy contracts and thirteen states void paid contracts.  North Dakota has a fairly straight forward statutory resolution of this issue.  N.D. Chapter 14-18 Uniform Status of Children of Assisted Conception Act.   In the event of a custody dispute, a surrogate has custody of the child; a gestational carrier does not.  Whether one agrees or disagrees with this result, at least the parties know where they stand going into the relationship.

⁵ In Soos v. Arizona, 182 Ariz. 470, 897 P.2d 1356, (App. 1984), the parties filed for divorce during the pregnancy of a gestational carrier. In the following custody dispute, the Court held that a surrogacy statute that does not provide a process to assert maternity is a violation of the Equal Protection Clause under the United States Constitution because the genetic father is able to assert paternity to children born to a surrogate while the intended mother is not.

⁶  Minter & Kendell, Beyond Second Parent Adoption:  The Uniform Parentage Act and the “intended Parents” A Model Brief, 2 Georgetown J. Gender & L. (Fall 2000).

⁷  Only Texas, Delaware and Wyoming have enacted the 2002 UPA.  The 2002 UPA does not resolve issues of disposition of genetic material, insurance coverage, procedures for collecting, preserving and disclosing pertinent information about gamete donors to the children resulting from ART.