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As the couple reviews the profiles of available donors, they begin to worry about doing something so important—creating a life—with a stranger. They worry about the health history of the donor and the potential for undetected (or unreported) genetic problems. They are concerned about the donor's relationship to a child conceived with her egg, and whether a contract will make a difference if the donor decides she wants a place in the child's life. They have been frightened by news coverage of surrogacy cases in which women who contracted to carry children for a couple later change their minds, sue and win some parental rights. They don't know whether to meet the donor or to keep it anonymous (as is the case with most sperm donation). And they worry about being able to reach the donor if a child conceived with her egg ever needs specific health information related to her genetic heritage.
They turn to you for most of their questions, and you refer them to infertility resources, specialized attorneys, psychological counselors and other couples who have gone through the process. In the end, they decide to pursue egg donation because it will allow the wife to carry and the husband to have a genetic connection to the child.
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| What new elements—medical, ethical, legal, psychological—does the introduction of a third party bring to family building? |
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| Context |
| The question of who is a parent in donor conception arrangements—like most health and medical issues—depends on the state you live in. The Uniform Parentage Act, a federal effort to create a non-binding model law to determine parentage, has been adopted, in some part, by fewer than half the states. Yet, despite the importance of establishing parentage definitively for the enforcement of child support, social security, veteran's benefits and inheritance rights, the answer to who is a parent in the context of reproductive technologies varies widely across the United States. In the 1990s, two decisions by California appellate courts (courts which review lower trial court decisions) advanced the idea that the intentions of the parties, as described in the contract, took precedence over other claims. In other words, a biological connection to a child, either genetic or gestational, did not guarantee any parental rights, but if your intentions brought a child into the world, you would be held responsible for that child. Since then, other courts have used the same argument to award parentage to the intended parents, and in early 2003, Minnesota introduced two bills further enshrining the doctrine of intention in all donor and surrogacy conceptions.
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| Cases |
| Three cases involving surrogacy have helped define law around parentage and reproductive technology. While each serves as binding legal precedent only in the state where it was decided, all three have had a significant impact on answering the question of who is a legal parent when so many can contribute to the birth of a child. In traditional surrogacy, a woman is inseminated with the sperm of the intended father because the intended mother is unable to conceive and/or carry a child. Here, the surrogate is the genetic as well as the gestational mother of the child. In gestational surrogacy, an embryo created without the surrogate's help is transferred to the surrogate at the arrangement of an intended couple. The surrogate here has no genetic tie to the child.
In the case of Baby M, the tension that runs through surrogacy arrangements was made manifest. A New Jersey couple, Bill and Elizabeth Stern, contracted with Mary Beth Whitehead, a surrogate, that she would be artificially inseminated with Bill's sperm and then relinquish the resulting child upon its birth. The Sterns agreed to pay all of Whitehead's medical costs plus $10,000 when the baby was delivered into their hands. But when the child was born, Whitehead had second thoughts. The legal battle went to the New Jersey Supreme Court, which ruled that Bill Stern and Mary Beth Whitehead were the legal parents, but that the Sterns were the custodial parents and the baby would stay with them. Whitehead maintains visitation rights.
In Calvert v. Johnson (California 1993), the Calverts contracted with Anna Johnson to bear them a child from the Calverts' sperm and egg. Johnson threatened to keep the child, and the Calverts sued to be declared the legal parents. The trial court ruled that since the Calverts were the genetic parents of the child, they were the legal parents. Johnson appealed up to the California Supreme Court, which ruled that in cases where there was a conflict between a birth (or gestational) mother and a genetic mother, "intention" determines parentage.
A subsequent California case, Buzzanca v. Buzzanca (California 1998), tested whether a person who was not adopting but who had no biological connection—either gestational or genetic—could be considered the legal parent of a child. In Buzzanca v. Buzzanca, John and Luanne Buzzanca contracted with a surrogate to bear them a child from an embryo created with other people's egg and sperm (i.e., it had neither John's nor Luanne's genetic material). About a month before the child was born, John filed for divorce and claimed there were no children of the marriage. Afraid that her own legal motherhood was in jeopardy, Luanne went to court. In a stunning decision that led to an appeal, the trial judge declared that the child, Jaycee, had no legal parents. Eventually a California appellate court, following the decision, ruled in Luanne's favor, stating that the intended parents (the ones who signed the contract to bring a child into the world, without whom that child would not have been born) are the legal parents, even if they have no genetic relationship to the child.
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Egg donation, sperm donation and surrogacy make possible a host of relationships that were previously unimaginable. In some cases, sisters agree to be egg donors or surrogates, and brothers agree to be sperm donors. In one Australian case, a woman had one child from her sister's egg and one from her sister-in-law's egg. A South African couple, fearing that a surrogate might renege on her promise to give them their child, asked the wife's 48-year-old mother to be their surrogate. The mother bore the couple triplets. These arrangements challenge traditional notions of kinship. For instance, the Australian woman is both the birth mother and grandmother to the triplets, and the egg donor (who is also a sister) is both the aunt and the genetic mother to her sister's child.
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