Procreation through art: why the adoption process should not apply

• Author: Melanie B. Jacobs
• Position: Associate Professor of Law, Michigan State University College of Law.
• Pages: 399-411

Page 399

My appreciation to the members of the Capital University Law Review for inviting me to participate in this stimulating symposium.

The Supreme Court has long recognized a "private realm of family life which the state cannot enter."¹ For me, in evaluating whether assisted reproductive technology (ART) should be governed by adoption principles, the question is whether assisted reproduction should be viewed as an extension of family and procreative privacy or whether assisted reproduction bears greater similarity to adoption and should be subjected to a more extensive and invasive legal process. More specifically, should an intended parent of a child born through use of sperm or egg donation be obligated to adopt the child? Must parties adopt a child whose birth they intended through use of a surrogate? My short answer is "no." Assisted reproduction falls closer to the procreation end of the spectrum than the adoption end-parties intentionally use this technology to have a child of their own. As such, ART should fall within the constitutional purview of protected family privacy and should not be subjected to the greater regulation and screening of adoption law.

Rather than having to use the adoptive process, parties should instead be able to rely on the Uniform Parentage Act (UPA)² or relevant state parentage laws to establish their parentage at the child's birth. Waiting six or more months to adopt a child who was born through the emotional and financial efforts of intended parents seems counterintuitive. The UPA does not in all instances provide complete privacy for families and may require some investigative and legal process, similar to adoption.³ Overall, however, the UPA assures greater privacy and less state intrusion than the adoption process. Moreover, by including concepts of intentional parenthood within its provisions, the UPA more realistically establishes parentage for persons using assisted reproduction: the UPA establishes Page 400 them as the legal parents of their intended child, not the adoptive parents of someone else's child.⁴

I see this symposium as an opportunity to discuss our preferred or ideal mode of legal decisionmaking for assisted reproduction, so I will now briefly make an argument for application of the UPA and similar parentage laws, rather than the adoption process. I do not disagree with Professor Carbone's contention that the adoption process has merit for same-sex couples and that it can provide a certain measure of security for those families.⁵ But the adoption process does not accurately reflect that couples use ART to have their own children. For instance, a lesbian couple who purposefully plans to have a child and to use a sperm donor for insemination of one party should not need adoption to legalize the parentage of the non-birth mother. Or, if a married couple uses both sperm and egg donors and a gestational surrogate to have a child, adoption is not the best process by which to validate the couple's parentage. Unlike the typical adoption scenario, there is not an existing child whose parents have had their parental rights terminated and for whom new parents are sought. The sperm and egg come together because of the intent of this particular couple to create their own child.

When parties employ assisted reproduction to have their own children, I find it hard to argue that the adoption process should apply, regardless of whether the parents are an opposite-sex or a same-sex couple. In previous writings, I have urged courts to apply the UPA to same-sex parents by focusing on their intentional and functional parenthood.⁶ Here, I suggest that because assisted reproduction falls within the ambit of family and procreative privacy, parentage principles that determine parentage from birth-like the UPA-best recognize and protect nontraditional families who must use ART (rather than traditional coitus) to have their own children.⁷ Page 401

Assisted reproduction is an extension of procreative privacy,⁸ and couples who use ART should not be required to adopt the resulting child. Family privacy has been a lynchpin of American jurisprudence for more than a century. Beginning in the early 1900s, the Supreme Court made several rulings that confirmed the "sanctity" of family life and affirmed that states had authority to intervene in family matters only in limited instances.⁹ The concept of family privacy has been deemed to extend to privacy in many family planning matters, such as the right to procreate,¹⁰use contraception,¹¹ seek an abortion,¹² or engage in private, consensual sexual activity.¹³ The parameters of family privacy were at times unclear in the Court's reasoning: How far does privacy extend? Just to married couples?¹⁴ To heterosexual couples?¹⁵ Page 402

When the Court decided Lawrence v. Texas in 2003, those questions were answered. The Court articulated that a person's liberty interest "presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."¹⁶ The Court concluded that two members of the same sex are permitted to engage in intimate conduct pursuant to that liberty interest.¹⁷ In analyzing the right of same-sex individuals to engage in intimate conduct, the Court looked beyond the specific acts proscribed by the Texas statute and noted that the Constitution must respect personal autonomy in a wide array of decisionmaking, such as procreation and family relationships.¹⁸ When citing its decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court wrote:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.¹⁹

Lawrence thus broadly defines family privacy: privacy applies to married and unmarried couples, to heterosexual and homosexual individuals, and to a wide range of personal decisionmaking, including decisions regarding the creation of families. Read this way, procreative privacy should include ART. In addition, presuming that ART falls within the constitutional purview of procreative privacy, it should apply to opposite-sex and same- sex couples equally. If opposite-sex couples are able to use assisted reproduction without the need for the adoption process, so too should same-sex couples be permitted to do so.

There are various ways in which a person becomes a legal parent, some of which are more private than others. At one end of the spectrum, Page 403 parenthood is established by biology or marriage.²⁰ Giving birth to a child has long determined parentage,²¹ and historically a woman's husband has been presumed to be the child's legal father.²² At the opposite end of the spectrum, adoption creates a legal relationship between a child and her adoptive parents where no relationship would otherwise exist. It is a public process: prospective adoptive parents are thoroughly screened and evaluated prior to adoption. Parties who intentionally cause the birth of a child should not be obligated to adopt their "own" child.

Courts are split regarding the applicability of adoption statutes to surrogacy. In one of the first surrogacy cases-the incredibly well- publicized Baby M case-the New Jersey Supreme Court refused to enforce a surrogacy agreement and determined that such agreements violated New Jersey adoption laws²³ and public policy.²⁴ The Court decided Baby M when surrogacy arrangements were still relatively new to courts and society; however, there remains no clear mandate legalizing surrogacy.²⁵

The Buzzanca case²⁶ provided a very different view of surrogacy, and one, I argue, that better reflected the intentions of the parties. Buzzanca illustrated the advances of assisted reproductive technology and the legal complications that can arise therefrom. John and Luanne Buzzanca Page 404 contracted with a surrogate to have an embryo implanted that was genetically unrelated to either of them.²⁷ Subsequent to the fertilization, implantation, and pregnancy, Luanne and John's marriage disintegrated.²⁸In his divorce complaint, John alleged that there were no children of the marriage, but Luanne contended that the child due to be born pursuant to the surrogacy contract was indeed a child of the marriage.²⁹ In fact, the child, Jaycee, was born six days after the filing of John's complaint.³⁰

The trial court had many parties available to consider as Jaycee's parents: Luanne, John, the egg donor, the sperm donor, the surrogate, and the surrogate's husband.³¹ Regardless, the trial court held that neither John nor Luanne was Jaycee's parent, rendering Jaycee without any legal parent.³² The trial court relied in large part on the fact that neither John nor Luanne was genetically related to Jaycee, nor did Luanne give birth to Jaycee.³³

The appellate court vigorously rejected this "adoption-default model." The court explained:

The legal paradigm adopted by the trial court . . . is one where all forms of artificial reproduction in which intended parents have no biological relationship with the child result in legal parentlessness. It means that, absent adoption, such children will be dependents of the state. One might describe this paradigm as the "adoption default" model: The idea is that by not specifically addressing some permutation of artificial reproduction, the Legislature has, in effect, set the default switch on adoption. The underlying theory seems to be that when intended parents resort to artificial reproduction without biological tie the Legislature wanted them to be screened first through the adoption system . . . . The "adoption default" model is, however...