by Tiffany Jenca
One of the biggest decisions every couple faces is whether, and when, to have children. Significantly fewer couples must decide how to have children. For most same-sex couples, though, the “if” cannot be separated from the “how.”
Today, the “how” is typically accomplished through methods known as Assisted Reproductive Technology, or “ART.” This post provides a general overview of two common forms of ART: surrogacy and sperm/egg donation.
A “surrogate” is a woman who carries to term and gives birth to a child who will legally be the child of another: the “intended parent.” A “traditional” surrogate is a woman that carries to term for the intended parent a child comprised of the surrogate’s own egg and a donated sperm. A “gestational” surrogate is a woman who carries to term for the intended parent a child with whom the surrogate has no biological relation, because her egg was not used in the embryo.
In determining which type of surrogacy is right for you, it is important to understand that, in the surrogacy context, a biological relationship to the child is often legally favored in Pennsylvania. Because of the potential for confusion and resulting legal battles if a traditional surrogate later decides to seek custody of the child to whom she is biologically related, most intended parents choose to use their own sperm/egg and a gestational surrogate. Moreover, Pennsylvania courts strictly limit the rights of a gestational surrogate and acknowledge that “no law in this Commonwealth” provides a gestational surrogate standing to seek custody of a resulting child as against a biological parent.
Egg and Sperm Donation
Unlike with surrogacy, in the sperm/egg donation context, a mere biological relation to the child is typically insufficient, on its own, to establish parental rights. So, although a sperm/egg donor is biologically related to the resulting child, the donor’s legal rights and obligations to the child often turn on the donor’s social, emotional or financial involvement in the child’s life.
For example, Pennsylvania courts have held that anonymous sperm and egg donors enjoy no rights with respect to the resulting child. The donor and the intended parent enter into separate contracts with a third party agency, which contracts effectively terminate any potential rights between donor and child.
The law is not as cut-and-dry, however, when an intended parent opts to use the sperm or egg of a “known donor,” such as a friend or former love interest. Pennsylvania cases illustrate the broad spectrum of legal rights and responsibilities under Pennsylvania law that may (or may not) attach to a known donor.
In one case, a man agreed to donate sperm for his former lover’s use in an ART procedure. The parties orally agreed that the man would have neither parental rights over the children nor a financial obligation to support them. The couple concealed the donor’s identity as the children’s biological father, and he was generally uninvolved in their lives. Nevertheless, the mother decided to seek child support payments from him. Ultimately, the court refused her claim, acknowledging that parental obligations go hand-in-hand with parental rights. Because the man had—by agreement, and, in practice—not been involved in the children’s lives, he could not be required to pay child support.
Conversely, where the known donor visits his biological children’s home and becomes an “integral part” of the children’s life, Pennsylvania courts do not hesitate to find that the donor is also obligated to financially support his children, and may actually have parental rights to the children.
In sum, the key legal principles that those considering using Assisted Reproductive Technology should keep in mind, are:
- In the surrogacy context, biological parents are legally favored in Pennsylvania. To prevent future legal disputes over who is the child’s parent, the safest option is for the intended parent to use his/her own sperm/egg in creating the embryo, and to use a gestational surrogate.
- In the donation context, anonymous sperm/egg donors typically have no parental rights or financial obligations to children born from those sperm/eggs. On the other hand, known donors who choose to be a part of the lives of the children born from his/her sperm/egg, may actually become financially obligated and have legal rights to the child.
Although ART planning is complex and may seem overwhelming, many potential issues can be limited or avoided altogether by ensuring that the proper legal documents are in place prior to beginning the ART process. It is always advisable to seek help from attorneys experienced in these matters.
Are you and your partner or spouse ready to start your family? Let us help. Contact Maureen Cohon or one of the experienced other attorneys in our Nontraditional Couples and Families practice group to make sure that your rights are protected.
Tiffany Jenca is a third-year law student at Duquesne University and was a 2013 summer associate in the firm’s Pittsburgh office.