While the primary purpose of a legal contract in any form of assisted reproduction is to establish the intentions of the parents, legal and psychological components often intersect. For example, contracts usually cover basic communication between intended parents and a surrogate. And after the birth, it is also critical for parents to have a court order confirming parental rights—which is not covered by a birth certificate.
Rich Vaughn is a founding partner of International Fertility Law Group with 20 years of legal experience. He serves on the Board of Directors of the American Fertility Association and chairs the American Bar Association Family Law Section Committee on Assisted Reproductive Technology.
Assisted Reproductive Technology law encompasses a lot of things. What I mainly focus on is surrogacy work and egg donation, although I do a fair amount of sperm donation contracts, and embryo donation contracts.
Well, the main purpose of a surrogacy agreement is to establish in writing the intentions of the parents. The court is not obligated to rubber stamp the contract and just say, “Because it’s in the contract, I must therefore, sign the court order.” The court’s job is to make sure that the court order is in the best interest of the child. The contract is there to establish in writing clearly what the intent was from the beginning. So at least in terms of parental rights, the most important thing the contract does is establish that the intended parents do wish to become the parents, and the surrogate does not.
Sperm donation and egg donation are significantly different, because, at least at this point, egg freezing is not as “perfected” as sperm freezing. So with sperm freezing, it’s been around for decades—you have sperm banks. The sperm donor goes to the sperm bank, makes the donations, his vials get labeled, you know, Donor Number whatever, and then whenever a prospective parent comes to the door and wants to use those vials, they sign a contract with the sperm bank. That doesn’t happen so much—not yet, at least, with egg donation. Egg donation is typically done through an egg donation agency, where the agency has recruited egg donors. They post them on a database online. The intended parents go through the database and try to find the donor that fits what they’re looking for, and then you enter into a contract, a direct contract between intended parents and the donor. That doesn’t happen in sperm donation, unless it’s a known sperm donor, in which case you would want a contract between a known sperm donor and the intended parents.
Once the contracts are drawn up, that’s the end of the first phase of legal work, to be honest. Fortunately, or hopefully, rather, the surrogate gets pregnant. And at that point, then we need to start preparing for a legal process to confirm the intended parents as the legal parents. And the reason we need to go through a legal process to confirm parental rights is because the presumption of law, everywhere, in every state, every country of the world, is that a woman carrying a baby is the mother. That’s the automatic presumption. It works for everybody else. You know, if a straight couple gets pregnant, they don’t have to go to court to confirm parental rights. That’s the automatic presumption of law. In a surrogacy case, that presumption does not apply, and you need to usually go to court, to get a court order to confirm that yes, this presumption does not apply. She is not the mother. The intended parents are the legal parents, and that their names should go on the birth certificate.
The discrepancy between the states is based on the fact that most states do not have legislation that defines how we go about confirming parental rights in a surrogacy case. So a lot of the states may fall back on what they already know—which, the closest thing to this is adoption. And in adoption, you don’t do anything until the baby’s born. You go to court, and you get your court order after birth. Now, this isn’t an adoption because you’re not taking a baby from one family and placing it with another. But it’s the closest legal construct that exists out there, so a lot of states fall back on that and say, “Let’s at least wait until the baby is born, then you can go in and get the court order.”
A lot of people think that a birth certificate is the document you need to show that you are the legal parent. And in many cases, and in many situations—passports, for one—the birth certificate is just recognized as evidence that you are the legal parent. But in assisted reproduction, it’s critical that you have a court order that confirms your parental rights, because you have these presumptions that need to be rebutted, often, for instance, if a surrogate carried. You also have other presumptions that some people think might apply that don’t apply in all states. For instance, the marital presumption. There’s this idea, of course, that a child born into a marriage is the child of the married couple. That’s great, if you never go anywhere else other than the state that allows that. So if you’ve got a gay couple in California, that’s married, and they have a child, you might be able to get both of them on the birth certificate through this marital presumption. But will that do you any good in Arkansas, or Arizona, or any of the non-recognition states? No, it won’t. So the birth certificate wouldn’t do you any good.
I think for many parents, you know, the idea that they have to adopt their own child is a bit offensive. But there are plenty of parents out there, clients that I’ve worked with, that are very pragmatic about it, and they just understand that in the end, it will all work out. If there were statutes in place that defined exactly what to do in surrogacy in every state, we might not have that problem.
I’ve encountered several judges who have been homophobic—not me personally, but through my practice, and our Of Counsel attorneys that we have in other states, we have encountered a few. Ultimately, we’ve been successful in all of these cases. But it’s—you know, it’s a real challenging moment to stand your ground, and do it in the most efficient way—because ultimately, there’s a baby involved. So you could file some huge litigation and challenge it, or you find another way to get what you’re looking for.
The best part of my job is, at the end of the day, getting the baby pictures. You know, I’m helping people through this complicated set of legal requirements. And in the end, they become the parents, and they send baby pictures, and they are, you know, they’re happy, they’re grateful, and I’ve played a part in that.