Twenty years ago there weren’t many options other than adoption, sperm donation, and traditional surrogacy for couples who had issues with infertility. Today, there are numerous alternatives to choose from when making a decision to build a family. Since the law is having a difficult time keeping up with the emerging technology, it is important for these families to understand the legal implications when dealing with the different options with assisted reproduction technology.
Donor eggs can be used and fertilized with the intended father’s sperm through in-vitro fertilization (IVF) if the intended mother is incapable of utilizing her eggs. The resulting embryo is then transferred into the intended mother (or surrogate) and carried to term.
Embryo adoption occurs when intended parents make use of a cryo-preserved embryo (already fertilized) that was donated by another couple. The donated embryo(s) may be transferred to the intended mother or to a gestational carrier.
In sperm donation, an intended mother (or surrogate if applicable) is inseminated with donor sperm. This can be done through intrauterine insemination (IUI) or in-vitro fertilization (IVF).
State laws governing egg donation and embryo transfer vary. For instance, some specify that a woman who has donated an egg or a couple who has donated an embryo are not the legal parents of any resulting child. Other states recognize the woman who gives birth to a child conceived through ART as that child’s legal mother. Similar to egg donors, some states have laws that specify that a sperm donor is not the legal parent of a child conceived through artificial insemination. In other states, the law explicitly recognizes the husband of the intended mother as the child’s legal father. In cases where state law does not specify parentage, the donor(s) and the intended parents should draw up a written agreement, in which the donor relinquishes any parental rights.
In Indiana, most fertility doctors will require a legal contract to address the responsibilities of both the Intended/Recipient Parent (IP) and the donor. The contracts provide protection for all parties by detailing compensation and responsibilities and help clarify expectations. As for the legal parentage, Indiana has a statute that explicitly states that the woman that gives birth to the child(ren) is presumed the legal mother. If the woman giving birth is married, her husband is presumed to be the legal father of the child(ren). However, Indiana’s case law is favorable to the Intended Parents becoming the legal parents of their biological child(ren) and has been granting pre-birth orders to deal with the statutes presumption of birth mother being legal mother. In the event that a pre-birth order is not obtained, a post-birth order and modification of the birth certificate can be done to name the appropriate parents. Because of Indiana’s presumption it is important to speak with an experienced lawyer that deals with this type of law to obtain a court order specifying the intended parents as the legal and biological parents.
For the reason stated above, it is best to obtain a lawyer when you are using donor material because there is much more legal risk in obtaining parentage of the resulting child since there is not a genetic relationship between one of the parents. There may also be some risk to the donor or intended parents that are using a donor. The donor and/or intended parents may try to make contact in the future against the wishes of the other party. Also, their family members may try to pursue a relationship with the child, or the child with the donor’s family. It is also a risk that the donor has other offspring in the same geographical location and there is a risk for incest between offspring. These are just a few examples that should be considered when using donor material. In sum, there are many aspects that need to be considered and a lawyer that specializes in reproductive law can address those with you.