What Happens to Left-Over Embryos?

Yet another court -- this time in Maryland -- has been called upon to decide what should become of frozen embryos remaining after the divorce of the couple who made them.

Typically, these cases look like this:  a husband and wife experiencing fertility issues have created embryos through an in vitro fertilization procedure.  The embryos are cryopreserved and stored for future use.  Then the couple splits up.  One of them wants to go forward with using the embryos to conceive a child; the other wants the embryos destroyed.

Often, use of the embryos is the final opportunity for the infertile husband or wife to have a child that is biologically related to him or her.  Since the embryos were made, the wife may have become too old to produce viable eggs; or either husband or wife may have had their fertility destroyed by chemotherapy or other medical procedures.  If the embryos are destroyed, a potential father or mother will forever lose her/his chance to become a parent to his/her own biological child. 

And yet....

If the couple created the embryos together, as husband and wife, and if one of the spouses (usually the wife) goes forward with conceiving a child by use of those embryos, won't the husband be the father of that child?  Is it fair to ask a man who is now divorced from his former wife to be the father of a child she conceives after the marriage and against his will?  Is he liable for child support?  Should he be?

These cases raise daunting issues both legally and ethically.  As attorneys, it is hard to know how to advise our clients.  So, as with all such issues, I ask: how could these cases best be avoided?

Fertility clinics owe it to their patients to do a much better job on medical consent forms for assisted reproduction procedures.  Typically, these forms are prepared by medical malpractice attorneys who have little or no knowledge of family law, for the purpose of protecting the clinic from future malpractice claims.  Couples would be well advised to consult knowledgeable assisted reproduction attorneys before signing these forms, to make sure they fully understand the consequences of the choices they're making about future disposition of their genetic material.  The costs of these legal consultations are nothing in comparison to the costs -- both emotionally and financially -- of litigation like that currently going on in Maryland.

Why the Kansas Sperm Donor Case Isn't News

I have been astonished, over the past week, to see the case where a Kansas sperm donor is being held responsible for financially supporting the child conceived with his sperm all over the news.  Stories about this case have run everywhere from the Wall Street Journal to the Huffington Post to tabloids.

Predictably, I have started receiving alarmed calls and emails from clients who are involved in sperm donation arrangements, wondering if they should be worried.  For the most part, the answer is a resounding NO.  Here's why:

(1) Kansas law on sperm donation is almost identical to California law on sperm donation.  It makes clear that a man who provides his sperm to a physician for purposes of inseminating any woman other than the man's wife is legally a sperm donor and not a father.  Anyone who wants to be a sperm donor, and therefore to be safe from liability for child support, just has to follow this law.  In California that means doing the sperm donation through any licensed physician or sperm bank -- of which there are many.  Had the folks in Kansas used a doctor to assist with the insemination, this case would never have happened.  Anyone who has seen an assisted reproduction attorney for advice prior to inseminating should know this.  And finding an assisted reproduction attorney in most states is easy: just go to the website for the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) and there is a state-by-state listing.

(2) Most states have a preference that a child have two legal parents -- to provide care and support for the child -- but in many states, they don't care who the two parents are.  Had the folks in the Kansas case lived in California (or in about 20 other states throughout the country), even though they did not use a physician to assist them with the insemination, they could have completed a 2nd parent adoption after the baby was born in which the second mom became a legal parent and the donor's rights were terminated.  Sadly, because Kansas does not currently provide a way for two women both to be recognized as parents of the same child, this option wasn't available to the parties now involved in this high-profile mess.

And by the way, this has nothing to do with marriage equality.  I have seen a number of articles reporting that the second mother in this case isn't legally responsible for the child because of Kansas's constitutional amendment providing that only different-sex couples can marry.  This is mixing apples and oranges -- the two women could both be recognized as parents without being married, just like kids can have a mother and a father regardless of whether mom and dad are married.  Kansas needs to find a way to allow children being raised by same-sex couples to have two legal parents of the same sex -- typically through 2nd parent adoption -- whether or not it wants to allow same-sex couples to wed.

One more point: it is the responsibility of Departments of Child Support Services throughout the country -- in fact, it is their mandate -- to find parents to hold financially responsible for children wherever possible, rather than having those children's care fall on the taxpayers.  The Kansas Department of Child Support Services is simply doing their job.  As far as I can tell, they are not the "bad guys" here.

The problems highlighted by the Kansas case have simple solutions:  (1) people becoming parents through assisted reproduction need to understand the laws of the states in which they live -- and then follow them; and (2) states need to make it simpler for people parenting children -- including same-sex couples -- to take legal responsibility for those children.  With those two changes, cases like this would never again need to happen.