For some, Assisted Reproductive Technology provides a wonderful alternative way to build or expand their family. However, this is an area where science has outpaced the law and the law is in many instances still evolving and uncertain. Collaborative Reproduction, including gamete donation (sperm and egg donation) embryo donation and surrogacy (both traditional - where the carrier is the biological parent of the child- and gestational - where the carrier bears no biological connection to the child), implicates important legal rights and relationships. It is important to have knowledgeable counsel to advise you regarding your rights obligations and expectations.
Egg Donation, Sperm Donation And Embryo Donation
It is important that all parties to a gamete donation agreement or embryo donation agreement obtain legal counsel in order to assure that the parties fully understand and consent to the legal ramifications of entering into the agreement. Some of the issues that should be addressed in an agreement include: parental rights, confidentiality, medical expenses, insurance, compensation, future contact communication with the intended parents, the child or the donor.
Gestational Surrogacy
At the outset it is essential to understand that New York and New Jersey prohibit surrogacy for a fee. However, there is no legal prohibition against a woman carrying a child for intended parents so long as she does not receive any compensation for doing so. Because of this, there are many heartwarming examples of successful surrogacy arrangements between close relatives or friends where the surrogate has received no compensation beyond legally permissible expenses including the cost of the medical procedures and legal counsel.
Important legal issues must be confronted in every case where Gestational Surrogacy is contemplated, even if no fees are involved. Because all such arrangements carry the potential risk that the surrogate could challenge the intended parents’ right to legal recognition of their parental status, such arrangements should be undertaken only after all participants in the process have received expert legal counsel.
How do the Intended Parents of children born to a gestational carrier obtain legal recognition of their parental status?
Gestational Surrogacy agreements are not enforceable in New York; however, it is still critical for all participants to have a clear understanding of the legal issues that are presented by such arrangements and to make plans that take into account all parties’ expectations and interests. There should also be a plan in place as to how the intended parents’ rights will be legally recognized after the birth of the child.
In the landmark case of Doe v. New York City Board of Health, 5 Misc.3d 424, 782 N.Y.S.2d 180, 2004, Rumbold & Seidelman succeeded in obtaining a New York Supreme Court Order declaring the Intended Parents the legal parents of triplets born to a gestational carrier. The Court directed the New York City Department of Health to name the Intended Parents as the parents on the original birth certificate without requiring the Intended Parents to prove their parentage through DNA testing and without requiring the Intended parents to adopt their own child. In the alternative, Intended Parents have the option of obtaining legal recognition of their parental relationship towards the child born to a gestational carrier by Petitioning for Adoption.
Currently, in New Jersey, it is possible for intended parents to obtain an order pre-birth which will allow the birth certificate to issue in the intended parents’ names. Where the gestational carrier is not compensated and the intended parents are the genetic parents of the child, the Court may issue an order which provides for the intended parents to be named on the birth certificate, provided that 72 hours after birth, the gestational carrier surrenders any parental rights to which she may be entitled A.H.W. v. G.H.B., 772 A.2d 948 (N.J. Super. 2000).
