In the Age of Alternative Reproduction, Who are a Child’s Parents?

In the Age of Alternative Reproduction, Who Are a Child's Parents? Liz Mandarano April 17, 2012, 10:49 a.m. EDT

NEW YORK, Jan 29, 2011 (Huffington Post) -- Thanks to modern medicine, more traditional and non-traditional couples and individuals are able to become parents through assisted reproductive methods, including anonymous and known sperm and/or egg donation, surrogacy, and second parent adoption. However, states have varying laws on matters that effect alternative reproduction including sperm donor rights and responsibilities, the legality of surrogate motherhood contracts, recognition of same-sex marriages or civil unions, the need for court-approved adoptions, and whether second parent adoptions are available.

"One would think that there would be legal uniformity as to parental and financial rights and responsibilities. In fact, state legislatures have mostly punted this hot-button issue, declining to readdress the definition of parentage in recent years and instead allowing their judicial systems to render inconsistent verdicts," said Liz Mandarano, a Manhattan family law and divorce attorney at Bikel & Mandarano, LLP and frequent blogger for the Huffington Post Divorce Vertical. "The inconsistencies create an enormous amount of uncertainty ranging from inheritance rights to child support and visitation."

The Uniform Parentage Act, last revised in 2002, is a model statute that was created by the National Conference of Commissioners on Uniform State Laws to serve as a guide for drafting family legislation. It recognizes that as many as five adults can be involved in the production of a single child, and adopted a functional family definition as opposed to one dominated by genetics. With regard to assisted conception, it encourages that States:

  • Authorize gestational surrogacy agreements as valid contracts requiring court approval similar to adoption.

  • No longer require that at least one of a child's intended parents be genetically related.

  • Recognize that egg and sperm donors are not the legal parents of a child under any circumstances.

Mandarano adds, "Unfortunately, only nine states have adopted versions of the 2002 Act, and for those who did, half have limited the parental rights to opposite sex married couples or declined to include the provisions related to surrogacy. Likewise, the Act does not acknowledge same sex couples, instead defining parents as a man and woman."

Some states even have conflicting rules relative to egg and sperm donation because some define genetic mothers as the legal mother but deem a married man the parent of a child conceived from an anonymous sperm donor. In other words, under this scenario, if a married couple used a donor egg and a donor sperm using a surrogate, then the anonymous woman who provided the donor egg is considered the legal mother, but the husband is considered the legal father.

Additionally, there has been an increase in the questionable practice of commercially contracting with foreign surrogate mothers in countries such as India. And what if, for example, a family undergoes alternative family planning in one state but then seeks dissolution of their marriage or union in another that has conflicting definitions of parentage?

Mandarano continues, "Whether you like it or not, families created through alternative reproductive methods are on the rise. States must acknowledge this trend and instead of seeking to prevent their use, should establish a method to report the offspring produced as a result of alternative reproduction technologies."

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