Assisted and alternative reproduction is an area of family law that can be extremely complicated and which involves complex relationships between all of those involved. This area of the law can apply to everyone: both gay and straight couples, either unmarried or married, and even to single people. As part of the assisted or alternative reproduction process, many parties may potentially be involved in one form or another, such as the egg donor, sperm donor, surrogate, gestational carrier, and perhaps even a spouse (of either the donor or the recipient) or a de facto parent[i] of the resulting child.
Besides the considerable emotional issues involved, there are significant legal issues that can arise as a result of assisted and alternative reproduction. All of the parties involved should consider the legal issues and consequences that result from assisted or alternative reproduction. These include, but are certainly not limited to: parental rights, custody, visitation, child support, adoption, and termination of parental rights. These legal issues may be impacted and further complicated based upon whether the parties decide to use a known or unknown donor.
Despite all of the potential issues involved in assisted and alternative reproduction, there is a noticeable lack of statutory law in Massachusetts regarding the rights and obligations of all of the parties involved with these procedures. As a result of the potential issues that can result from assisted and alternative reproduction, and the lack of statutory law defining each party’s rights, parties utilizing these techniques may wish to enter into an agreement between themselves, the donor and/or surrogate, and any other interested party, for example, their spouse or a de facto parent.
However, even entering into an agreement defining the rights and obligations of each of the parties involved poses at least one additional problem of whether or not an agreement, either in whole or certain parts of an agreement, is enforceable. It is important for the parties to understand that with respect to custody issues, any agreement that the parties enter into may be subject to a later judicial determination of whether the arrangement is in the best interests of the child.[ii] Nevertheless, entering into such an agreement can provide the parties with several advantages, such as reducing each party’s expectations to writing, should a later court proceeding be necessary.
These are serious and complex issues that can have significant consequences. All parties involved are strongly encouraged to seek independent legal counsel so that they can be advised of their rights and responsibilities and the advantages and disadvantages involved with assisted or alternative reproduction and whether or not to enter into an agreement with the other parties involved in the process.
If you would like an experienced attorney to help in the creation of your assisted and alternative reproduction agreements contact us online or call (978) 256-1456 to schedule an appointment to discuss your needs.
[i] “A de facto parent is one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent. . . . The de facto parent shapes the child’s daily routine, addresses his developmental needs, disciplines the child, provides for his education and medical care, and serves as a moral guide.” E.N.O. v. L.M.M., 429 Mass. 824, 829 (1999).