Introduction to Alabama's Assisted Reproduction Law
| Publication year | 2020 |
| Pages | 0125 |
The Problem
Infertility affects one in eight couples within the United States.1 It is diagnosed when a couple over the age of 30 unsuccessfully tries to conceive for a year. If the couple is under the age of 30, they are diagnosed after six months of unsuccessful conception attempts.2 And the Center for Disease Control recently released a report showing that infertility rates have increased dramatically over the last few years.3 So infertility is a growing problem, and both the law and medicine have addressed the potential medical solutions to it.
The physicians who treat this condition are called reproductive endocrinologists. The technology they apply is called assisted reproductive technology (ART).
In this article, we will look at the complex legal issues surrounding ART with hopes to give the practitioner a point of beginning in learning this complex and fascinating field.
Alabama's Approach
As the committee comments to Article 7 of Title 26 point out, "[d]uring the last thirty years, medical science has developed a wide array of assisted reproductive technology, often referred to as ART, which have enabled childless individuals and couples to become parents."
Alabama has addressed this in the Uniform Parentage Act (the UPA), Ala. Code §§ 26-17-101 through -905, and more specifically in Article 7 of that act, §§ 26-17-701 through -707 and § 26-17-901 through -905. This has also been addressed in the American Bar Association Model Act Governing Assisted Reproductive Technology (hereinafter referred to as "The Model Act"), and it offers guidance and provides a framework for ART attorneys.
Alabama varies from the national UPA in that it did not adopt the Model Act's gestational agreement section (Article 8 of the UPA is reserved for possible later adoption). We will talk more about gestational agreements later (they are important), but for now know that Alabama hasn't adopted any statutes about them. Since Alabama's statutes are silent as to gestational carrier agreements (surrogacy agreements), lawyers are not statutorily governed and must seek guidance from the Model Act, the UPA, and sister jurisdictions. Although some lawyers fear the use of surrogates due to Alabama's statute criminalizing payments in adoptions, the statute specifically makes an exception for surrogacy.4
There are several avenues for couples to consider if they are unable to conceive, and the legal ramifications vary greatly depending on the route they choose. The laws in this area are spread across probate law, juvenile law, family law, and contract law.
The facts of the case will dictate the path of law that the families will need to take. Those facts, combined with the decisions that families make, dictate what family law attorneys should be considering when determining how to guide their clients. And since the family is dealing with those several areas of the law simultaneously, they need solid legal advice.
Let's think about how to think about all of this.
Overview of ART
Begin with why the couple is infertile in the first place. The cause of infertility suggests the solution, and the solutions suggest the area(s) of the law that have to be considered.
For example, if the issue is sperm quality or quantity, sperm donation may be an option. If the issue is egg quality or quantity, egg donation may be an option. If the couple is able to get pregnant but not to carry the baby to term, having another woman-called a surrogate-carry the child to term may be an option. If the couple is individually fertile, but they cannot create an embryo together, embryo adoption may be an option. Perhaps the client is a single person seeking to create a child without a spouse, and that creates substantial issues on its own.
It is important to know and understand where the clients are medically. Only then can you help them know their next legal steps.
There is an entire language surrounding this area, and the lawyer should learn it.
In contracts for receiving sperm, eggs, or an embryo, the couples are known as donor recipients. In surrogacy cases, the infertile couples are known as the intended parents.5 In these cases, the donation of sperm or eggs is referred to as the gametes.6 The couple may be using their own gametes and having a carrier (surrogate) carry their child to term, adopting an embryo and carrying that child themselves, adopting an embryo and using a carrier, or using a mix of donated gametes (ovum or sperm) along with their own gametes to create an embryo that is implanted in a carrier.7
As you can see, things can get complicated. Legal help is crucial.
If parties have successfully navigated the path to obtain a donor, they will need to move forward with their next medical procedure.
If a client is contracting for sperm, they will typically move forward with an intrauterine insemination (IUI).8
However, if they are adopting an embryo or receiving eggs under an ovum contract, the couple's next step is in vitro fertilization (IVF). The science behind this is complicated and can easily cause parentage issues. In Kass v. Kass, the New York Court of Appeals described the process:
Typically, the IVF procedure begins with hormonal stimulation of a woman's ovaries to produce multiple eggs. The eggs are then removed by laparoscopy or ultrasound-directed needle aspiration and placed in a glass dish, where sperm are introduced. Once a sperm cell fertilizes the egg, this fusion-or pre-zygote-divides until it reaches the four- to eight-cell stage, after which several pre-zygotes are transferred to the woman's uterus by a cervical catheter. If the procedure succeeds, an embryo will attach itself to the uterine wall, differentiate and develop into a fetus. As an alternative to immediate implantation, pre-zygotes may be cryopreserved indefinitely in liquid nitrogen for later use.9
Kass only provides a basic explanation of IVF. There are several other procedures that can be utilized to increase the probability that IVF will be successful.
Attorneys have to have a basic understanding of how all of this works so they can explain the process to the court (more about that in a minute). They then have to show the court how the process should be handled legally.
If this process is not handled properly, timing could cause an issue which would lead the case to have to be fixed via adoption, which is less than ideal when the child is already considered to be your clients' child. For example, if there is no pre-birth order in place, (these are discussed at length below) and a surrogate births a child she has been contracted to carry for a couple, she will be presumed to be the mother of the child by the hospital and placed on the birth certificate although she is not genetically related to that child.
Paternity Issues
In about half of the infertility cases, the infertility begins with an issue with the male partner.10 That is called male factor infertility. Couples may decide to use a sperm donor, or they may seek new scientific treatments.11 Provided those treatments are successful, the parties may never need to use donor sperm. In fact, the stigma surrounding artificial insemination and other methods used to circumvent male factor infertility have essentially been eradicated. Intrauterine insemination (IUI) is now widely accepted.12 Alabama law statutorily addressed IUIs and parentage declaring that if a woman is married and undergoes intrauterine insemination, the woman's spouse is the legal parent of the child.13
Representation is more complicated when a person is a single parent or when there is an unmarried couple. Parties may decide to use donor sperm from either someone they know or from an anonymous donor.14 Anonymous sperm donors at sperm banks contain less of a risk simply because their identity is not disclosed to the recipient.15 The UPA and the Model Act all provide that if a donor provides sperm to someone other than his spouse, he is a donor and not a legal parent.16 Under current Alabama law, you cannot contract out parental responsibility for a child, regardless of the intentions, before a pregnancy occurs.17
In the absolute worst-case scenario, if a man offers to be a donor for an unmarried woman, because of the laws regarding paternity and child support, there is nothing stopping the donor from asserting parental rights despite his pre-conception intentions; likewise, there is nothing stopping a mother from seeking financial assistance for the child despite her pre-conception intentions.18 The law on child support and paternity is in place in order to protect the rights of the child, not the intentions of the parents. The laws are written in a way that protects a child's right to be financially supported and to have a relationship with his or her parents. Thus, it is extremely important for lawyers practicing in this field to draft agreements that explicitly detail the roles and intentions of everyone involved.
Maternity Issues
In the past, maternity was an open-and-shut case. If a woman gave birth to a child, that child was hers, both biologically and legally. With advances in medical technology, giving birth to a child is no longer the only determinative factor. Under the Alabama Code, our statutes still maintain that a woman giving birth is a determinative factor for maternity, but new...
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