Mcle Article: the Family Lawyer's Guide to Assisted Reproduction Law in 2016
| Publication year | 2017 |
| Author | Deborah H. Wald, Esq. and Richard B. Vaughn, Esq. |
Deborah H. Wald, Esq. and Richard B. Vaughn, Esq.
Deborah Wald is the founder of The Wald Law Group, an all-purpose family law firm in San Francisco, where her primary practice areas include parentage litigation, custody, adoption and assisted reproduction law. She is certified as a Family Law Specialist by the State Bar of California Board of Legal Specialization and was named a California Super Lawyer for both 2015 and 2016. She is a fellow of the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) and the Academies of California Adoption and Family Formation Lawyers, and a member of the reproductive law committee of the American Bar Association. In addition, she is Chair of the National Family Law Advisory Council for the National Center for Lesbian Rights.
At International Fertility Law Group (IFLG), Rich provides legal services nationwide to clients from all over the world hoping to build their families through assisted reproduction. Among many other volunteer activities, Rich chairs the A.R.T. Committee of the ABA Family Law Section. Rich has also served on the National Board of the American Fertility Association (now Path 2 Parenthood). Rich has lectured at legal and family building conferences around the world, and has been featured as a fertility law expert on NPR, Parenting Magazine Live and other online radio shows. Rich and his husband are the proud parents of twin boys through egg donation and surrogacy.
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Assisted reproduction law is such a rapidly changing field that it is hard to keep up. Every year sees substantial changes, and 2016 was no exception. This article updates an article run in FLN in 2015 and includes significant legislative changes enacted since then. These changes broadened the statutory definition of "sperm donor," created a new statutory definition of "egg donor;" expanded California's jurisdiction in surrogacy cases and clarified what information needs to be provided to the court when Intended Parents use anonymous egg or sperm donors. The article also addresses the new frontier of embryo litigation.
"Assisted reproduction" is defined in the California Family Code as "conception by any means other than sexual intercourse." (Cal. Fam. Code § 7606 (a).) Assisted reproduction methods include egg donation, sperm donation, embryo donation, and surrogacy. However, instead of having one statutory scheme to cover all the various types of assisted reproduction, our Family Code addresses each one separately, if at all.
When addressing jurisdictional issues, it is critical to remember that our courts must have both personal and subject matter jurisdiction. The jurisdictional provisions for California's Uniform Parentage Act ("UPA") can be found in Family Code section 7620. Legislation was enacted in 2016 that will provide greater clarity regarding when California courts have jurisdiction to address conflicts over assisted reproduction matters and when they do not. Effective January 2017, Family Code section 7620(a) will provide personal jurisdiction over any person "who has sexual intercourse or causes conception with the intent to become a legal parent by assisted reproduction in this state, or who enters into an assisted reproduction agreement for gestational carriers in this state, ... as to an action brought under [our UPA] with respect to a child who may have been conceived by that act of intercourse or assisted reproduction, or who may have been conceived as a result of that assisted reproduction agreement." This subsection will provide subject matter jurisdiction over all gestational surrogacy cases where (1) the intended parents or surrogate reside (or resided at the time of contracting) in California, (2) the medical procedures leading to conception (IVF and/or embryo transfer) were carried out in California, or (3) the child is born in California.
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The Family Code has at least two important procedural statutes that address standing, i.e., who can bring a case to establish (or, presumably, disestablish) parentage in cases involving assisted reproduction. Family Code section 7630(f) provides that "[a] party to an assisted reproduction agreement may bring an action at any time to establish a parent and child relationship consistent with the intent expressed in that assisted reproduction agreement." An "assisted reproduction agreement" is defined in Family Code section 7606(b) as "a written contract that includes a person who intends to be the legal parent of a child or children born through assisted reproduction and that defines the terms of the relationship between the parties to the contract." Under these two statutes, any person who enters into a written agreement (e.g., a sperm donation contract) that sets out the parties' intentions as to who will be a parent and who will not will have standing to petition the court to obtain an order of parentage or non-parentage consistent with the intentions memorialized in the agreement.
Sperm donation, because it is relatively simple and also relatively inexpensive, is probably the most common form of assisted reproduction. The rules applying to sperm donation can be found in Family Code section 7613. Pursuant to section 7613(a), "[i]f a woman conceives through assisted reproduction with semen ... donated by a donor not her spouse, with the consent of another intended parent, that intended parent is treated in law as if he or she were the natural parent of a child thereby conceived. The other intended parent's consent shall be in writing and signed by the other intended parent and the woman conceiving through assisted reproduction." This version of Family Code section 7613(a), which went into effect in 2016, significantly expands the protections available to non-genetic intended parents using donated sperm to conceive. Prior to 2014, Family Code section 7613(a) only provided protection to husbands consenting to their wives' insemination with donated sperm, and required that the sperm donation be overseen by a physician. The newest version of 7613 is both gender-neutral and marriage-neutral, only requiring that "another intended parent"—male or female, married or unmarried—sign a written consent to the assisted reproduction procedure.
Per Family Code section 7541(e)(2), DNA test results are not admissible to either prove or disprove paternity in cases falling under Family Code section 7613(a). The rights and responsibilities of sperm donors are set forth in Family Code section 7613(b) which, until 2016, stated that "(t)he donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction of a woman other than the donor's spouse is treated in law as if he were not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child." Effective January 1, 2016, this provision has been expanded to eliminate the requirement that the donation of sperm be to a physician or sperm bank. Now, a donor of semen is treated in law as if he were not the natural father of a child resulting from the sperm donations as long as (a) the sperm was donated to a physician or sperm bank or (b) the sperm was donated pursuant to a written assisted reproduction agreement signed by both donor and recipient prior to conception or (c) the court finds clear and convincing evidence that the parties mutually intended the man to be a sperm donor and not a father although there was no physician involved and no written agreement. Note that the sperm must be provided for purposes of assisted reproduction. Whether or not a physician is involved, and whether or not there is a written contract, if the sperm is provided by way of sexual intercourse the "donor" will be treated in law as the natural father of the child.
The questions of how courts should differentiate between sperm donors and fathers, and what role medical personnel and procedures should play in that distinction, are being debated in California and around the country. A recent Virginia case held that a man who donated sperm directly to a woman for purposes of a home insemination was a father and not a sperm donor because the woman used a turkey baster for the insemination and a turkey baster is not a "medical device" as required by Virginia's assisted reproduction statute. According to that court, had the woman used a needleless syringe to insert the sperm rather than a turkey baster, the man would have been a sperm donor, but because she used a kitchen instrument rather than a medical instrument, the man was a father with all the rights and obligations associated with that designation.
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The American Bar Association published a Model Act Governing Assisted Reproductive Technology in February 2008, which was intended to be consistent with the 2000 and 2002 versions of the Uniform Parentage Act and that does away with the requirement that a medical provider be involved. Under the Model Act, a sperm donor or egg donor is simply a person who provides their gametes for use in assisted reproduction without the intent to be a parent. Under the Model Act, intent to be a parent generally would be demonstrated through a written agreement. However, the "[f]ailure of an individual to sign a consent ..., before or after birth of the child, does not preclude a finding...
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