Have you or anyone you know personally ever used modern medical technology to have a baby? If your answer is “yes,” you’re among a growing group of Americans. Despite the increase in families using fertility treatments, most people don’t realize that it’s not just a medical issue, but a legal one too.
Numbers from the Pew Research Center show that the number of babies conceived with ART, or Assisted Reproductive Techniques, is up three-fold since 1996. These techniques – intrauterine insemination, in vitro fertilization, donor eggs, donor sperm, fertility drugs – are allowing couples who are unable to have a baby on their own to experience the joy of parenthood.
“Not all doctors are aware that there need to be legal agreements to protect their patients,” says Jorgeson. “Fertility law is a very grey area of law. There’s a lot of confusion among people going through the fertility process, and people don’t know when legal paperwork is recommended.”
Jorgeson and her partner, Ian Pittman, sat down with Texas Legal to discuss the legal side of fertility treatments and what families should consider before beginning creating their family.
Who Are the Legal Parents?
If you’re considering fertility treatments, don’t wait to find a lawyer. If possible, the legal process should begin before fertility treatments start, says Pittman.
“We meet with people all throughout the process, but it’s always best but we can meet with them before a donation or transfer has been made,” says Pittman. “There are things that are just necessary legally if you want to have the full protection of the law.”
Jorgeson and Pittman say it’s important to establish who parents of the child are in the eyes of the law. This is particularly important for a single person or a couple using a donor, as well as LGBT couples.
Having legal paperwork in place protects everyone in case of divorce or disagreement. Of course, people don’t like to think about conflict in their future, but having the legal paperwork in place ensures that no matter what happens, your family’s boundaries and legal status will be clear. Different kinds of legal documentation is necessary depending on a couple or person’s situation.
Legal Considerations for Sperm or Egg Donation
In the case of an egg or sperm donor, it’s important to legally establish who intends to be a parent and who is the donor. Jorgeson says that there are instances when a woman might ask a man she knows well to donate sperm to help her have a child, and due to the trust she has with that person, she might feel like a legal agreement isn’t necessary. But having one in place better protects both parties.
“I think people don’t necessarily think to do that paperwork, because it’s someone that they know and trust,” says Jorgeson. “But it’s important under Texas law to make clear who is and who is not the parent.”
Jorgeson and Pittman say they’ve seen cases where the donor later decided they wanted to be a parent of the child they helped create, leading to a difficult legal battle.
“A man donates sperm to a woman, and later decides ‘Actually I want to be a father to this child, and I believe I’m a parent,’ and decides to get a court order,” says Jorgeson. “It’s very murky when there was no legal agreement in place ahead of time.”
Another legal agreement that can help in the case of egg and sperm donation: confidentiality. Texas law on sperm and egg donation doesn’t establish whether or not donation should be confidential or when or how a child is told about their biological origins. If those specifics are important to either the intended parents or the donor, it’s crucial to have that in writing in a legal document.
“Some parents want to specify that they are the ones who will find the time of when it’s appropriate to inform a child, and they don’t want the donor or donor’s family to spill the beans early,” says Pittman.
Establishing Parentage for LGBT Couples
Medical technology has enabled same-sex couples to have children biologically related to them through techniques like reciprocal in vitro fertilization and gestational carriers. Unfortunately, the law hasn’t quite caught up with the advances in technology, leaving many LGBT couples in a legal lurch.
Jorgeson experienced this herself when she and her wife used in vitro fertilization (IVF) for each of their three children, and reciprocal IVF for the last two. In reciprocal IVF, one woman gives her egg to create an embryo with a sperm donor, and the embryo is implanted into her partner or spouse’s uterus. So without legal clarification, which partner would be presumed to be the child’s legal mother – the one who gave genetic material or the one who carried the baby? Jorgeson said when she asked different judges, they gave her different answers. When her second son was born in 2015, originally only her wife was listed as his mother on his birth certificate.
Leigh worked hard and fought to get their family recognized legally, and since then, married same-sex couples who have a child via fertility treatment or same-sex couples who have completed the adoption process now have the ability to have both parents listed on a child’s birth certificate.
But just having a birth certificate may not be sufficient. It’s important to have a court order that establishes who the child’s legal parents are, says Pittman.
“A birth certificate is not enough to make an actual legal determination of who a parent is,” says Pittman. “There are errors made all the time on birth certificates, so if it comes to having to prove that you are the legal parent, it’s not enough.”
Although legal agreements and birth certificates might just seem like a piece of paper in the wake of the very exciting decision to have a child, Jorgeson and Pittman stress that they’re essential for future peace of mind.
“Sometimes, a couple doesn’t go through the process of establishing legal parentage when the child is born,” says Jorgeson. “If later, they decide to split up, one person may try to make the accusation that the other person is not actually a parent because the parentage was not legally established. We are involved with cases like that pretty frequently. A lot of people don’t think they need to legally establish parentage because they’re in a good place in their relationship, and they don’t like to think there’s a time that they will split up or they think that if they do split up the other parent would never try to exclude them from being a part of the child’s life, but it happens.”
Having the paperwork in order is also important in case something happens to one of the child’s parents, making sure the other parent has guardianship over their child.
Using a Gestational Carrier
For couples where the wife is unable to carry a child or where two men who are married and want to start a family, choosing to engage a gestational carrier is a common option. A gestational carrier is different than a surrogate in that a gestational carrier is not genetically related to the baby, but simply carries a donated embryo to term. Like reciprocal IVF, one partner is often genetically related to their child via sperm or egg donation. Similarly, it’s important to go through the process of making sure both intended parents are listed on the birth certificate and establish their parentage by court order.
In addition, it’s important to have a gestational carrier agreement which specifies that the gestational carrier is not a parent of the child, and it is important to obtain a court order approving that agreement before an embryo is transferred to the gestational carrier
When it comes time for the baby to be born, couples with a gestational carrier sometimes need to show a court order to the hospital in order to get access to the maternity ward and have the proper wristband to be with their child.
“Engaging a gestational carrier and entering into a gestational carrier agreement is a unique process, and there may be some counties in Texas who are unfamiliar with the process, particularly when it involves same-sex couples,, so it may invovle educating the judiciary to a certain extent. Also, there are hospitals who have never seen this type of agreement either, so we have to help them understand the situation and what the couple’s legal rights are,” says Jorgeson.
Finding the Right Attorney For Your Fertility Decisions
Because fertility law is a new and constantly-changing area of law, it’s important to find an attorney that has significant experience in these matters. Pittman recommends asking an attorney, “What personal or professional experience do you have with this issue?” and carefully evaluating their answer.
Jorgeson says she’s met many LGBT couples who had previously had uncomfortable meetings with attorneys who weren’t familiar with the fertility process at all.
“They had to sit through meetings with attorneys who aren’t even aware of even how two men or two women are able to have a child or who do not have any idea how the law might apply,” says Jorgeson. “A couple shouldn’t have to explain and try to justify what they are doing to an attorney. They need someone who is familiar with the issue and supportive.”
Plan Ahead and Protect Yourself
Pittman says many clients ask why these kinds of legal actions are necessary in this day and age, where LGBT rights are better recognized and fertility treatment more common. But Pittman emphasizes that the legal world hasn’t always caught up with modern medical technology, and while social norms are changing, respect for LGBT families is not well-established enough to go without the proper legal documentation.
“Until the societal norms change, we need that extra layer of protection for same-sex couples that opposite-sex couples get automatically,” says Pittman.
Leaders in fertility law and representing same-sex families, Jorgeson Pittman LLP practices statewide and represents clients from all over Texas and their firm has dealt with scores of cases in fertility law. Their services are available to Texas Legal members through the family law benefits, as well as attorney consultation and document preparation benefits.
If you’re considering starting a family through fertility treatment, consider contacting a family law attorney or law firm to talk about the legal aspects of your decisions. You can find a family law attorney near you by searching on our online attorney finder.