Q: I’ve seen a lot of stories in the news lately about surrogacy and gamete donation technology cases. The outcomes of these cases seem inconsistent. Can you explain?
A: Laws concerning family formation are written, interpreted, and enforced on a state-by-state basis. Some states have no statutory laws that are precisely on point, so the courts are forced to adapt other provisions of the law to decide particular cases.
These situations can be made even more complex when the parties live in different states. Many people are involved: the intended mother, the intended father, the biological mother, the biological father, the gestational carrier, the gestational carrier’s husband, the medical personnel and, of course, the child. Balancing the rights of all these individuals can be difficult and complex.
The intended parents have a right to procreate and a right to privacy, but the child’s rights are less clear. You are right; the outcomes of these cases can vary.
Q: How, then, can all of the parties to an assisted reproductive technology situation make informed decisions and plans?
A: To make sure the rights of everyone involved are considered and potential problems are anticipated and addressed, participants often make written agreements in the form of contracts, waivers and consents. Ohio statutory law specifically authorizes some of these, and courts have recognized others and used them to determine the intent of the parties involved. These documents should be carefully drafted to suit the facts of the particular situation. If you are a party to an ART situation, an attorney can help you or can refer you to another attorney who will be able to help you. Documents addressing ART situations may be available online, but they may not be consistent with Ohio law or with your individual circumstances. Using a legal contract you find through the Internet can be like using someone else’s discarded plaster cast when you break your arm; it may do more harm than good.
Q: We are considering using ARTs so we can have a child, but are worried about handling the expense. Doesn’t the cost of such legal services increase the costs of ARTS?
A: It is true that ARTS can be expensive. The procedures involve time-consuming and complex lab and medical steps. It is important to remember, however, that the goal of the process is for a child to become part of a family in every way. To accomplish this goal, legal steps must be taken when using ARTs to gain a child. This legal work is part of the surrogacy process. Obtaining appropriate legal documents will allow you to parent the child and to be acknowledged as the child’s parent. If you shortchange the legal process, you could face years of litigation and heartbreak. In a nutshell, the child is not yours until the law says so.
Completing the proper legal work will allow you to avoid:
• contested arguments with the donors or gestational carriers over custody of the child;
• lawsuits for damages if the gestational carrier becomes disabled or dies as a result of the ART process;
• problems over who has authority to consent to your child’s medical treatment;
• struggles to register your child for school, to enroll him on your health insurance, and to obtain a passport.
This “Law You Can Use” consumer legal information article was provided by the Ohio State Bar Association. It was prepared by Columbus attorneys Susan Garner Eisenman, chair of Ohio’s Adoption Law Roundtable and ARTS and AAAA fellow, and Robin B. Baird, who represents medical providers of ARTS.