Applying old law to new births: protecting the interests of children born through new reproductive technology.

• Author: Faulkner, Barrett F.

1. INTRODUCTION

   Determination of parentage is critically important in many areas of the law, from disposing of estates to assigning obligations for child support. For centuries, the law has developed and relied on certain presumptions to establish the legal parents of children. (1) For example, when a married woman gave birth to a child, common law presumed her husband to be the father. (2) These presumptions reflect, in large part, the natural birth process, starting with an act of sexual intercourse and ending with a birth nine months later.

   Modern reproductive technology challenges these traditional presumptions. A woman may give birth with no act of sexual intercourse, with no genetic relationship to the baby, and with no intent to raise the child. The increasing use of reproductive technology has forced some courts to reconsider what parentage means--whether one defines it by genetics, by the intent of the parents, or by the act of giving birth.

   In most states, the legislature has been slow in resolving the conflicts between old laws and new reproductive technologies. (3) Courts in many of these states have attempted to find a set of rules for determining parentage of children born through new technology, using statutes adopted at a time when legislatures could not have anticipated such births.

   The Massachusetts Supreme Judicial Court (SJC), during its 2001-2002 term, took a different approach in deciding two cases that involved reproductive technology. (4) The first of these cases addressed the question of who are the legal parents of a child born to a surrogate mother. (5) The second addressed the question of whether a child conceived after the death of her genetic father, using frozen sperm, may inherit from him under Massachusetts laws of intestacy. (6) In both of these decisions, the SJC found that existing statutes did not dictate a particular determination of who the legal parents are; instead, lower courts could use their powers in equity to determine parentage based on the facts of the case and the intentions of the parties. (7) These Massachusetts decisions went beyond what other state supreme courts have done to date to support new reproductive technology. (8) At the same time, the SJC made it clear that under different facts, the resolution of some legal problems with assisted births will require specific legislation. (9)

   This note briefly reviews the reproductive technologies involved in the two Massachusetts cases. It discusses each case in turn, examining the court's analysis in the context of existing law, and identifies potential legal issues that are not yet resolved by the decisions. The note then examines common issues and approaches in the cases, and discusses potential approaches to resolving remaining questions.

2. ADVANCES IN REPRODUCTIVE TECHNOLOGY--TERMS AND CONCEPTS

   Reproductive technology includes a wide range of medical techniques to assist the process of conceiving or carrying a fetus to term. (10) These techniques often involve married couples who have not been able to conceive or bear a child as a result of medical problems with one party or both parties. (11) Increasingly, this technology is being used in non-traditional family circumstances, such as by lesbian couples, (12) and recent advances in technology allow medically assisted conception to reduce the chance of passing on certain genetic defects to succeeding generations. (13)

   Medically assisted conception is not new: practitioners of animal husbandry have used artificial insemination for hundreds of years. (14) The earliest known use of this technique in humans dates to 1770. (15) New technology available to doctors--particularly advances in cryogenics--has increased the rate of success and the variety of techniques available to prospective parents. (16) The following section summarizes various terms and concepts included that are used in this note.

   Artificial insemination

   With this method of assisted reproduction, a doctor or other practitioner inserts sperm into the vagina or uterus of the woman by syringe or other instrument. 17 The husband of the recipient may provide the sperm; this might occur when natural conception has been unsuccessful because of a low sperm concentration or other reproductive problems. (18) An unrelated donor, who usually remains anonymous, may be the source of the sperm. (19) Donor sperm provide an option when the husband is completely infertile, or for single women who wish to bear children. (20) Artificial insemination is relatively simple and affordable and is in common use: a federal survey in the late 1980s indicated that 65,000 children are born in the United States per year using artificial insemination. (21)

   Artificial insemination, user donor sperm, creates a situation where there are three people with a potential parental interest in the child: the mother, the genetic father (the sperm donor), and the husband of the mother. Most states have resolved this potential conflict by removing any parental rights or responsibilities from those who contribute gametes (22) to a medical facility or sperm bank, and assigning those rights and responsibilities to the consenting husband of the impregnated woman. (23)

   In-vitro fertilization (IVF)

   With this process, the male's sperm fertilizes the female's ovum (egg) in a laboratory dish. (24) The fertilized ovum (now a zygote or pre-embryo) is then placed in the mother's uterus or fallopian tubes with a catheter. (25) This process is considerably more difficult and technologically challenging than artificial insemination. (26) A doctor must harvest the ova through a surgical procedure or needle aspiration, often after medicating the donor to increase ovulation and improve the chances of success. (27) The first successful use of the IVF procedure in humans occurred in 1978, (28) and accounts for more than 45,000 births in the United States since 1981. (29) With IVF, donors may provide both ova and sperm, so there are potentially four people with parental interests: the genetic father (sperm donor), the genetic mother (egg donor), the gestational mother, and the husband of the gestational mother. (30) A closely related procedure is a gamete-intrafallopian-transfer (GIFT), a procedure in which the sperm and egg are introduced into a fallopian tube of the gestational mother, and fertilization takes place in the fallopian tube. (31)

   Cryopreservation

   Advances in the technology of freezing and restoring gametes (sperm or ova) and pre-embryo have had a significant impact on reproductive technology. (32) Sperm banks routinely freeze sperm for six months or more in order to test donors for sexually transmitted diseases, and thus improve the confidence that women or couples have in using these services. (33) Freezing of embryos or gametes provides extended options for women receiving in vitro fertilization or similar procedures. (34) Women can schedule the implantation for an optimal time in their menstrual cycle. (35) These women may also attempt a second implantation, in the event that the first try is unsuccessful, without having to undergo another ovum harvesting procedure. (36)

   Cryopreserved sperm and pre-embryos can survive for many years; the success rate with frozen ova is poor. (37) It is possible to use frozen sperm to conceive a child long after the genetic father has died (posthumous conception), or after his divorce from the mother. It is also possible that a surrogate mother could implant a frozen embryo after one or both genetic parents have died.

   Surrogate motherhood

   Surrogacy generally involves an agreement between an infertile couple and a woman (the "gestational" or "surrogate" mother) who is willing to bear a child that the infertile couple intend to raise. The gestational mother generally has her expenses paid and a stipend provided by the couple, although she may agree to do it as an act of love for a relative or friend. (38) The surrogate mother may become pregnant by artificial insemination, in which case she is also the genetic mother. (39) She may alternatively become pregnant through in vitro fertilization or a similar method using ova and sperm from the contracting couple or from anonymous donors. (40) There may be up to six potential parents involved in this arrangement: the two genetic parents (gamete donors), the gestational (surrogate) mother, the surrogate mother's husband, and the two parents who contracted for the birth and who intend to raise the child.

   Reproductive technology has the potential to create parent-child relationships that would be impossible with natural conception. Common law or statutory law that defines the rights and responsibilities of the parties in the case of natural conception may not provide clear guidance or desirable results when applied to births resulting from artificial assistance. (41) While some of these reproductive technologies have been addressed by state law, few states have anticipated the range of issues raised by new technology. (42)

3. POSTHUMOUS CONCEPTION

   Posthumous conception challenges many of the concepts of parenthood that support inheritance rights, or inclusion of a person in a class of beneficiaries of an estate or trust. Common law dating back centuries held that heirs are ascertained at the time of the decedent's death. (43) Common law treated children who were in gestation at the time of the decedent's death and later born alive as if they had been alive when the decedent died. (44) Children born out of wedlock (including those born to a widow more than nine months after the death of her husband) were illegitimate, and did not inherit from their genetic father. (45) Strict application of the common law, then, would leave a posthumously conceived child with no inheritance rights from his father. Statutes dealing with probate and parentage that give children born out of wedlock rights to receive support from their legal parents have largely replaced the...