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Bar News - November 16, 2012

Family Law: What Every Family Law Practitioner Needs to Know:
Legal Pitfalls in Assisted Reproductive Technology Law


With one in eight couples estimated to have difficulty conceiving a child, all family law attorneys are certain to encounter the unique legal issues that result from fertility treatments. This is an emerging area of the law, with very little guidance for practitioners in this state. Nonetheless, attorneys must be careful to avoid certain pitfalls.

Pitfall 1: Not Inquiring about Frozen Genetic Material

Sperm, eggs and embryos can all be frozen and stored indefinitely by couples undergoing fertility treatments. An estimated 500,000 frozen embryos are in storage in the US, but the quantity of frozen sperm and eggs is unknown. To date, the NH Supreme Court has not addressed the legal status of frozen genetic material in the context of a divorce or death, other than in the context of inheritance by posthumously conceived children, Eng Khabbaz v. Commír, Soc. Sec.Admin.,155 N.H. 798 (2007). Courts in other states have generally found sperm and embryos to be in the nature of property or quasi-property. See In Re Witten, 672 N.W.2d 768 (Iowa 2003); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); Kievernagel v. Kievernagel, 166 Cal. App. 4th 1024 (2008).

Egg-freezing technology is so new that the cases have not made their way to the courts yet, but it can be expected that frozen eggs will be treated similarly to frozen sperm.

In general, courts have not forced divorcing spouses to procreate against their wishes, but there is one notable exception to this general rule. In one case, a divorcing wife was given permission by a Pennsylvania court to use embryos created during the course of the marriage, despite her husbandís objections. Reber v. Reiss, 2012, PA Super 86.

Until the NH Supreme Court directly addresses these issues, this is an unsettled area of the law without clear guidance for NH practitioners. What is clear, however, is that many divorcing New Hampshire couples have frozen genetic material in storage. To further complicate this situation, much of this frozen genetic material is stored out-of-state, most often in Massachusetts.

Divorce and estate planning attorneys need to routinely inquire about the existence of any frozen genetic material, so that its disposition can be addressed as part of the divorce or estate plan. Proactive inquiry will help avoid unfortunate results such as in Gladu v. Boston IVF, 32 M.L.W. 1195 (Mass. 2004), where, during the pendency of the divorce, the wife convinced the medical clinic to transfer the coupleís remaining frozen embryos to her uterus. The clinic did not verify the husbandís desire to proceed with the treatment, and he only found out about the procedure when he discovered his wife was pregnant. For many clients, infertility is a private matter ó if you donít ask, often they wonít tell you about their frozen genetic material.

Pitfall 2: Not Recommending Stepparent Adoptions When Donor Gametes Are Used

As New Hampshire recognizes same-sex marriage, the names of both female partners in a same-sex marriage can go on the birth certificate and no reference needs to be made to the sperm donor. However, it is a mistake to rely on the birth certificate as conclusive proof of parentage because the courts have the power to determine otherwise. These kinds of cases have routinely come up when the mothers have moved to another state, divorced, or sought government benefits. There also have been cases where sperm donors have decided they want to play a parental role and have attempted to seek parenting time with the children. Most commonly, problems arise with known sperm donors, but problems can also arise with anonymous donors. A stepparent adoption is crucial for same-sex female parents in order to fully preserve the rights of both mothers, as well as the rights of the child, and to ensure that the sperm donorís rights are fully terminated.

Similarly, opposite sex couples using an egg or sperm donor may wish to consider a stepparent adoption. While New Hampshire law provides that the woman who gives birth to a baby is the mother, the federal government and other states are not obligated to honor this New Hampshire statute. In fact, in addressing citizenship matters, the US Department of State is actively refusing to recognize women who became pregnant through egg donation as the mothers of the resulting children. It is unclear whether other governmental agencies will in the future take a similar position, and certainly the cautious route for any couple using a gamete donor is to undertake a stepparent adoption.

Pitfall 3: Not Asking for Details about a Childís Conception

In many states, strict compliance with laws governing sperm and egg donation has been required to terminate the donorís legal rights. Slight deviations have resulted in donors retaining parental rights and responsibilities. Generally, these deviations have involved the failure to use a physician for an artificial insemination procedure or the failure of the recipient couple to be married. While RSA 168-B is unclear on whether a physicianís involvement is required for insemination, many New Hampshire couples travel to other states for fertility treatment, so New Hampshire law may not be the only required legal analysis. See Jhordan C. v. Mary K., 179 Cal.App.3d 386 (1986) (male who donated sperm to female for an at-home insemination was found to be the father where statute required donated sperm to be provided to a physician). Conversely, an unmarried recipient couple using donor sperm may find that the expected father has no legal rights or responsibilities to the child if the insemination takes place in a state, such as Massachusetts, where the recipient couple must be married. See Steven S. v. Deborah D., 127 Cal.App.4th 319 (2005) (unmarried male who provided his sperm to physician to inseminate his girlfriend was not the father of the resulting child where statute required recipients to be married).

Again, unless the attorney asks, clients wonít disclose these private details and the door will be left open for a court to later find that a parent has no parental rights and responsibilities or that a child is not covered by a will, trust or other estate planning documents.

Advances in fertility treatments have allowed many couples to have children. However, these same technologies have brought with them a whole host of new legal issues. It is imperative that every family law practitioner become familiar with these issues to be able to adequately address them in the context of divorce, parental rights and responsibilities, and estate planning.

Catherine Tucker practices in Concord.

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