Of all the scientific and technological developments that have taken place over the last two decades, advances in assisted reproductive technology (ART) are arguably the most impressive. Procedures such as in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), the use of fertility medication as well as the cryopreservation of embryos and gametes are helping couples and individuals conceive who normally could not due to a range of medical issues. However, as with any novel and groundbreaking way of doing something, doors open to parallel issues that must be addressed directly. One of these is an ever-evolving legal surrogacy regime.
The two most common surrogacy models are traditional and gestational. With traditional surrogacy, the egg-donor surrogate (female carrier) is impregnated by the sperm of the future father. Most states recognize this as a type of adoption where the female carrier surrenders her parental rights to the couple or person who initiated the process. A stepparent adoption is then performed by the non-biological intended parents or person.
Gestational surrogacy is where an embryo is created, most frequently through IVF from the parents who intend on retaining custody of the child and then implanted into the surrogate’s uterus. This is an unregulated procedure in most states, and parenthood is ultimately determined by a contract. If conflicts should occur, the state will intervene.
In the states where surrogacy is unregulated, parental rights are established by a contract. If a contract is breached or broken, the state (courts) step in, leaving political institutions to determine the parents. As technology becomes more and more sophisticated, we will naturally see the categories of mother and father morph into a regime that renders biological ties to a child as merely incidental, effectively separating conjugal relations and conception. Legally, an interesting policy question emerges:
Can a legal system hold by simultaneously recognizing procreation as well as “human agreements” of parental rights?
A 2016 New York case between a same-sex couple demonstrates the thorniness of state-approved surrogacy. Man A and Man B wanted children and conceived twins with the egg of Man B’s sister and the sperm of Man A. The two gentlemen subsequently separated, and Man A left the state. The case eventually reached the state Supreme Court, and ruled Man B and his sister were the twins’ parents. This is despite the fact Man B had no biological relation to the child.
This is an interesting legal area to keep an eye on, especially as the notion of parenthood continues to blur.
