Making babies is not what it used to be: Navigating the law of assisted reproduction

I was so ignorant about the subject that when I first saw the phrase “assisted reproduction” recently I thought it was a description of what happens when my secretary helps me make copies of legal documents. I was wrong. Assisted reproduction actually refers to the newly (and rapidly) emerging processes of bringing babies into the world.  For thousands of years babies could only be created through a single method: mommy and daddy spent the afternoon kissing, and then nine months later the stork delivered a beautiful baby.  How passe that all seems now.

In the past 20 years technologies have developed which enable a couple who could not otherwise produce a baby together to become parents nonetheless.  Assisted reproductive technology consists of medical procedures which facilitate procreation.  They involve laboratory handling or storage of eggs, sperm, or embryos, and include in vitro fertilization, and embryo transfer into the surrogate mother.

I happened onto the subject this week while sipping on a double decaf almond latte with skim milk and easing into the workday reading a trade journal.  As I turned the page I noticed a picture of a very pregnant woman, hands on hips, belly protruding, with a beautiful smile on her face.  Now I love a pregnant woman as much as the next guy, and so my eyes were naturally drawn to the text below the photograph which read, “This lovely woman, who is ready to give birth at any moment, is not nearly as happy as she appears.  She has just sued the couple whose progeny she is carrying.  Why?  Because the couple only wanted one progeny, and she is about to birth two progeny.”

Now that is an Excedrin headache for sure.  I was hooked, though, and I decided to put off for awhile longer returning telephone calls to irate clients so I could learn more about the subject of assisted reproduction.  I will go to any length for devoted fans of the Pro Bono column.

I am happy.  The subject is far too broad to cover in detail in this column, so here are a few observations on the subject.

Neither the Wyoming legislature nor the Wyoming Supreme Court has yet dealt with the issue.  I was actually surprised to find a reference to “surrogate mother” in the index to the Wyoming Statutes.  It appears in the “Vital Records” section of our state health laws dealing with birth certificates, and it states that, for purposes of birth registration, a woman who gives birth to a child is deemed the mother.  This is only for record keeping purposes, though, and in a particular case a Wyoming court may someday be asked to reach a different conclusion.

There are only a handful of reported cases in the United States on this issue.  The dispute is typically between the genetic parent(s) and the surrogate mother.  An entirely new language is developing to describe the various players.  Depending on the circumstances it may involve as many as six different persons, including the egg donor, the sperm donor, the surrogate, the surrogate’s husband, and the “intended parents” or “recipient couple”.

There have been approximately 16,000 babies born through assisted reproduction, but only 100 or so have resulted in bad feelings in which either the intended parents or the surrogate mother try to renege on their agreement.

The latest cases have actually involved the intended parents themselves pitted against one another.  In California (where else?) a married couple, John and Jane, entered into a contract with a “gestational surrogate”, Pamela, a woman who had no genetic link to the child. Pamela was the carrier of the child within her which was produced by sperm and egg unrelated to her (as well as to John and Jane).

One month prior to the birth of the child, that good for nothing John filed for divorce from Jane and alleged in the divorce petition that he and Jane had no children.  John was apparently interested in avoiding  the obligation to pay child support, although that is merely one of a host of issues in assisted reproduction cases.

What if the fetus is diagnosed with Down’s Syndrome?  Can the intended parents require that the pregnancy be aborted?  Or that the pregnancy not be aborted?

What happens in a situation where the intended parents freeze their eggs, or sperm, or both, and then divorce.  Who owns the stuff?  Can the wife use the husband’s sperm to make a baby?  Can a person become a parent in this manner against his/her will?

In an effort to avoid the minefield of potential pitfalls which are inherent in assisted reproduction, a standardized process is evolving with a protocol of steps along the way.  They include mental health counseling and screening, a binding contract, and making certain (Oh here it comes, the dreaded “L” word) making sure that each party is represented by a lawyer.

It has also generated enormously complicated legal and moral issues unimaginable only a few years ago.