Technology Blurs Laws on Parenthood; Courts Wrestling with New Issues of Surrogacy
Pittsburgh Post-Gazette
April 29, 2006
Triplets who are 21/2 years old are removed from the home of their gestational surrogate mother and her husband, and sent out of state to live with the biological father and his girlfriend.
An ex-husband discovers he is not the father of his girlfriend’s child after paying child support for 11/2 years, and goes to court seeking an end to his monthly payments.
A sperm donor is ordered to begin paying child support for twins — more than five years after his donation was used for in vitro fertilization.
This is the frontier of assisted reproductive technology and family law, an increasingly blurred border between biology and parenthood.
Pennsylvania, where those three cases occurred, has no laws governing surrogacy and egg or sperm donations. Laws vary widely in other states. Child custody has been granted to adults with no biologic, genetic or marital connection to the child’s other parent. And there are numerous cases where the child — an offspring of donated sperm, donated eggs and a surrogate mother for adoptive parents — has no genetic connection with its parents.
“Pennsylvania is certainly not alone in its uncertainty about how to define parenthood in this context,” said David D. Meyer, a professor of family and constitutional law at the University of Illinois. “Many other states around the country are in a similar limbo.
“Technology as well as changes in the way people are forming families are forcing new questions about what it means to be a parent. And it all comes together at one time.”
One such case involved the triplets in Erie County. They were conceived by donated eggs from a Texas woman and the sperm of an Ohio man, and carried by Danielle Bimber, 31, of Corry, Erie County. After the children’s birth in November 2003, despite having signed a contract renouncing any parental rights, she took them home and assumed custody.
A Common Pleas Court judge subsequently voided the surrogacy contract and named Mrs. Bimber the “legal mother” of the triplets.
But on April 21 a Pennsylvania Superior Court panel overruled the lower court, saying Mrs. Bimber’s custody of the triplets was “fraught with impropriety.”
The rulings highlight what experts say is the chasm between family law and reproduction technology. American family law is based on principles grounded in church doctrine and notions of morality. Technology has outrun current laws, and new ones are difficult to promulgate because legislatures are reluctant to pass bold measures.
Experts said the lower court’s ruling in the triplets’ case reflected a traditional approach to parenthood, which has long held that the woman who gives birth to the child is considered a parent, whether or not she is genetically related to the child. The biological father in this case was a single 64-year-old man living with his girlfriend, a widow with three grown children.
“The moral climate obviously influenced the lower court’s ruling,” said Melissa B. Brissman, a New Jersey reproductive attorney. “The intended parent was not married; it made for bad [case] facts.
“Judges obviously have strong moral feelings about these rulings. But just because you gave birth doesn’t make you the legal mother.”
The confusion does not mean there are no laws on the issue of parentage. The Uniform Parentage Act, formally adopted by less than half the states, has been in place since 1973. It encompasses rights for children in their legal relationship with both parents, and the parental rights and responsibilities of sperm and egg donors.
Only six states — Delaware, North Dakota, Texas, Utah, Washington and Wyoming — have passed the latest version of the Uniform Parentage Act.
The lack of statutory laws in Pennsylvania — a surrogacy bill introduced more than a year ago remains in committee — is being addressed by a state government commission on assisted reproductive technologies, which has met every other month for the past year. It has made little progress, according to Lawrence A. Kalikow, a commission member and Bucks County reproductive law attorney.
“Every time we think that we have resolved an issue, another fact is exposed and we have to revisit the entire issue, taking into account a new facet,” he said. “There are so many subsidiary issues. It is a very challenging task.”
In the meantime, state courts are dealing with cases that not only stretch existing laws but imaginations, too.
Take the case of Gebler v. Gatti. Gregory J. Gatti, who was unmarried, had been in a seven-year-long relationship with Kelly N. Gebler. When she became pregnant and gave birth, he accepted the child as his own and paid child support for 18 months, including nine months after the couple’s relationship ended. At that point, after his fiancee and friends wondered why the child looked nothing like him, Mr. Gatti obtained a DNA test and discovered he was not the biological father.
He stopped providing financial support and acting as the child’s father. But Erie County Common Pleas Court ruled Mr. Gatti was the legal father and could not renounce his parental or financial relationship.
In February, a state Superior Court panel overturned that ruling, based on the mother’s “misrepresentation that [Mr. Gatti] was the only one having sexual relations with [her] at the time of conception.”
Dr. Meyer of the University of Illinois said there is a growing trend to allow men “to disclaim paternity.” The danger in that, he said, is that “kids can be put in real jeopardy.”
The legal uncertainty of who exactly are a child’s parents harkens back to the Baby Richard and Baby Jessica cases of a decade ago, he said, when parents who had given children up for adoption at birth decided later to raise them. In both of those cases, the birth parents were awarded full custody.
The question, Dr. Meyer said, becomes how parenthood is defined. In California, for example, it is the intention to assume parenting. In other states, it is defined by biology or genetics.
In the case of Joel L. McKiernan, there’s no debate that he is the father of his ex-lover’s twins. He provided the sperm for Ivonne V. Ferguson, who gave birth through in vitro fertilization. The two had agreed she would absolve him from parental responsibility.
But after raising the twins as a single parent for five years, Ms. Ferguson sued Mr. McKiernan for child support.
Both Common Pleas and Superior courts ruled he owed $1,500 a month in support, deciding that despite a binding verbal contract, the two adults had improperly bargained away the twins’ right to child support from two parents.
Since Pennsylvania has not adopted a version of the Uniform Parentage Act, the sperm donor — in this case, Mr. McKiernan — has no legal protection from parental responsibility. The traditional legal answer to the case would be that Mr. McKiernan is the father.
Such a decision, if affirmed by the Supreme Court, could severely curtail sperm and egg donations. As many as 200,000 artificial inseminations occur annually in the United States. Holding sperm donors liable for support could result in other forms of fertility treatment becoming less available and more expensive.
“I still believe that courts in these instances should not rigidly adhere to the traditional legal preference for biological ties in custody disputes,” said John C. Mayoue, a family law attorney in Atlanta. Instead, he said, courts should probe “the nature and quality of the relationship” litigants have to the children.
“This is especially true in the era of artificial reproduction technology and blended families,” he said.