Tcl - Assisted Reproduction and Colorado Law: Unanswered Questions and Future Challenges - November 2006 - Family Law
| Publication year | 2006 |
| Pages | 39 |
2006, November, Pg. 39. TCL - Assisted Reproduction and Colorado Law: Unanswered Questions and Future Challenges - November 2006 - Family Law
November 2006
Vol. 35, No. 11 [Page 39]
Family Law articles are sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles are intended to focus on practice tips and discussions of current issues within the realm of family law.New authors are welcomed.
Article Editors:
Meredith Patrick Cord, Colorado Springs, of Kane, Donley & Johnson, PC - (719) 471-1650, mpcord@kdjpc.com; Trish Cooper, Greenwood Village, of Cook, Cooper & Moses, LLC - (303) 623-1130, trish@ccmfamilylaw.com
About The Authors:
Suzanne Griffiths is a family law attorney and shareholder of Gutterman, Griffiths PC, Littleton - (303) 858-8090, suzanne@ggfamilylaw.com. Logan Martin is an intern at the firm.
Assisted reproductive technologies ("ART") are changing the landscape of Colorado family law. This article discusses issues associated with ART and provides guidance to practitioners on managing ART issues. It also discusses possible updates to Colorado's parentage statutes.
The last two decades have witnessed an explosion in the technological development and popularity of assisted reproductive technologies ("ART"). For purposes of this article, ART include any treatments, procedures, or methods designed to conceive a child through means other than sexual intercourse, including but not limited to in vitro fertilization, artificial insemination, surrogacy, and posthumous reproduction.(fn1) Nationally, the number of assisted reproduction cycles performed has increased from 64,681 in 1996 to 122,872 in 2003.(fn2)
Assisted reproduction has allowed many individuals the opportunity to conceive and raise children; however, its development has generated a number of difficult legal questions, such that traditional family law jurisprudence is struggling to keep up with this changing field. Statutes and case law will continue to evolve in this area. In the meantime, attorneys will be faced with an increasing number of clients needing ART-related legal services, ranging from the facilitation of agreements before the use of ART to litigation in cases where problems arise concerning those agreements.
In Colorado, assisted reproduction is governed primarily by CRS § 19-4-106, amended in 2003 and adopted from the Uniform Parentage Act.(fn3) The statute has provided some clarification surrounding parentage issues, but questions remain unanswered. Colorado's law, or lack thereof, relating to surrogacy arrangements is a good example of this dilemma. By contrast, Colorado has reasonably clear guidelines related to posthumous parentage.(fn4) Consequently, Colorado practitioners are in the difficult position of having to navigate evolving law and precedent, while avoiding claims of malpractice or other ethical violations.
This article is intended to serve as a resource for attorneys concerned with ART. It discusses CRS § 19-4-106, as well as other relevant parts of Colorado's parenting statutes, and the particular applicability of these statutes to surrogacy agreements, cryopreserved (frozen) embryos, and posthumous reproduction.
A review of the statutes and case law surrounding these issues suggests that assisted reproduction contracts will become an increasingly important feature in ART disputes. Therefore, the following discussion focuses on the relevant considerations for Colorado attorneys who assist parties in entering into such contracts, including possible disputes over the establishment of parentage, the allocation of parental rights and responsibilities, and the heightened risk of malpractice claims faced by attorneys and medical professionals dealing with ART arrangements. Finally, the last section of this article discusses potential solutions for resolving ART issues in Colorado, citing model legislation from other states as examples.
Surrogacy Agreements
There are two types of surrogacy arrangements: traditional surrogacy and gestational surrogacy. In a traditional surrogacy arrangement, the surrogate mother is inseminated with the sperm of the intended father or donor and provides her own eggs.(fn5) In a gestational surrogacy arrangement, the surrogate mother is implanted with an embryo formed by the sperm and egg of one or both of the intended parents, and thus has no genetic ties to the child.(fn6) Because genetic consanguinity can be a key factor in determining maternity, this distinction can be significant.(fn7)
Colorado has no explicit provisions governing surrogacy arrangements or the enforceability of surrogacy contracts.(fn8) CRS § 19-4-106(1) is the only section of the Colorado Parentage Statutes that mentions surrogacy and does so only in passing.(fn9) Additionally, CRS § 19-4-106 addresses parentage issues only with respect to married couples who undertake assisted reproduction, leaving the practitioner to question the applicability of the statute to situations where one (or more) of the parties is unmarried.(fn10)
CRS § 19-4-106(1) is silent as to determining the legal rights of surrogate mothers in surrogacy arrangements, and mentions surrogacy only in passing. Although this might indicate legislative intent not to outlaw all surrogacy contracts, this provision does not explain the rights established by, and the enforceability of, surrogacy agreements. Thus, under Colorado law, it is not clear at what point, if any, a surrogate surrenders her parental rights, if she has them; the legality of providing compensation to a surrogate; and who is eligible to serve as a surrogate. Given the lack of Colorado law on the subject, it is unclear whether Colorado courts would uphold surrogacy contracts. However, as long as they are not expressly prohibited, surrogacy contracts may be of value in showing the intent of the parties entering into the agreement, even if such contracts are not explicitly enforced.
State Court Decisions
The California Supreme Court case of Johnson v. Calvert(fn11) addressed a dispute between a gestational surrogate and a married couple. Anna Johnson had agreed to serve as a gestational surrogate for an infertile couple, Mark and Crispina Calvert.(fn12) The parties signed a surrogacy contract whereby the Calverts agreed to pay $10,000 to Johnson and to pay for a $200,000 life insurance policy in her name. Johnson agreed to relinquish all parental rights of the child to the couple.(fn13) The embryos were created from Mark's sperm and Crispina's egg.
Both parties alleged breaches of contract against each other; Johnson claimed a failure to pay compensation and the Calverts alleged inadequate disclosure of Johnson's prior medical history.(fn14) After Johnson threatened to refuse to relinquish custody of the resulting child, the Calverts sought a court order declaring them the legal parents.(fn15)
The court held that, as a surrogate, Johnson had no claim to parentage of the resulting child, particularly in light of the clear intent of the parties evidenced in the surrogacy contract. This "doctrine of intended parenthood" has become a key test in resolving other disputes with surrogate parents where all parties are making competing claims for parentage. Although it is uncertain whether Colorado will resolve the issue in a similar manner, this case suggests that even if contracts are not enforceable, they can be valuable in determining the intent of the parties.
The Johnson case also can serve as a cautionary tale for attorneys in assisted reproduction cases, because the Calverts not only successfully gained custody of...
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