Assisted Reproduction: What Happens to Parental Rights?

There are many reasons a couple may choose assisted reproduction to build their family. An intended mother or father may not have viable eggs or sperm of their own and need donated eggs, sperm, or embryo. A couple that needs the help of a surrogate to carry a pregnancy may create embryos intended for transfer by in vitro fertilization (IVF). A lesbian couple may want one partner to provide an egg for a pregnancy that the other partner will carry after it is fertilized with donor sperm via IVF. Assisted reproductive technology (ART) makes it possible for the intended parents in the above scenarios to welcome a baby. But what is the law regarding parental rights in these situations?

Is an egg or sperm donor giving up parental rights? What about embryo donation? Are the individuals who contributed the sperm and egg to create an unused embryo signing over parental rights by making the donation?

The law of assisted reproductive technology hasn’t quite caught up with the technology itself, leading to thorny questions of rights and responsibilities when a dispute arises. Therefore, it is especially important for all parties involved in an ART procedure to clarify their rights and responsibilities ahead of time with a carefully drafted legal agreement. In this blog post, we will discuss sperm donor agreements, egg donor contracts, and embryo adoption contracts.

Sperm Donor Agreements

Intended parents who need the help of a sperm donor typically either go through a fertility clinic or professional agency, or use a donor who is known to them. There are valid reasons for both choices, but either way, it is important to have documentation expressing a donor’s intent to relinquish their parental rights. Agencies and clinics typically have their own consent forms in which sperm donors give up all parental rights and are relieved of all parental responsibilities (including the duty to pay child support). However, consent can always be withdrawn and they are only an expression of intent. In South Carolina, only a family court can effectively terminate a donor’s parental rights. This is because South Carolina does not have a donor statute which automatically terminates a donor’s rights upon donation. Therefore, a donor should have an ART lawyer review all donor related forms to ensure that they understand its terms.

If intended parents are working with a donor known to them, they may believe they are all in agreement about parental rights and responsibilities. This makes having an actual Sperm Donatio Agreement between the parties even more crucial. If circumstances change or an unforeseen circumstance emerges, a dispute can easily arise. For instance, in limited situations, a sperm donor could be obligated to pay child support. It is best for all parties involved in ART involving sperm donation to specify their intentions in a known sperm donor contract.

Egg Donor Legal Contracts

Intended parents who use the services of an egg donor should also have a legal contract for their protection and that of the donor, even if the donor is also one of the intended parents (such as in a lesbian couple in which one partner contributes the egg and the other carries the child). Both the egg donor and the intended parent or parents should have their own ART attorney involved in the drafting of the contract.

Egg donor contracts should clearly terminate the donor’s parental rights, unless the donor is also an intended parent, as in the scenario described above. It is possible that a woman who signs a “standard” egg donor agreement so that her partner could carry their child could unwittingly terminate her own parental rights. A woman providing an egg in this situation should properly be referred to as an “egg provider” and the contract drafted with her rights as an intended parent in mind, as well as those of the person carrying the child.

Just as with sperm donors, egg donor rights in South Carolina can only be legally terminated by the family court. Therefore, legal contracts for egg donors should also cover such topics as the rights and responsibilities of both the donor and intended parent(s); payment for the donor’s expenses and effort in donating; and, if all parties wish, the terms of any contact between the egg donor and the child after the birth. Such an agreement may become a crucial part of affirming the rights of the recipient parents.

Gestational Carrier Agreements

It is especially important to clarify legal rights and responsibilities when intended parents work with a surrogate (gestational carrier). A gestational carrier agreement will cover numerous issues, from the carrier’s medical care and nutrition to, of course, parental rights. Among other things, the agreement should specify how the intended parents will be established as the baby’s legal parents and how the gestational carrier will relinquish any parental rights and be relieved of parental responsibilities.

The contract should establish that the intended parents will take custody of the baby immediately upon birth, regardless of whether there is a pre-birth order in place. The agreement should also specify that the intended parents’ name will be listed on the child’s birth certificate.

Because surrogacy is a months-long process, the agreement should also address certain contingencies that could happen during the pregnancy: the intended parents could decide to divorce, change their minds about the surrogacy, become disable, or die. These provisions are necessary to ensure the protection of the child, the gestational carrier, and the intended parents. An experienced ART attorney will create a contract that anticipates these and other possible scenarios. While the possibility that these contingencies will arise may be slight, it is important to consider and address them.

Embryo Donation Agreements

During the journey to parenthood through IVF, many people create more embryos than they are able to use. Some choose to donate their embryos to give other hopeful parents the opportunity to have a baby. Embryo donation is complex because embryos are more than property, but are not “adopted” as a live baby would be.

When a potential embryo donor and recipient find each other, they should each have their own attorney representing them in the negotiation and preparation of an agreement. The final agreement should transfer ownership of the embryos to the recipient and terminate the parental rights of the embryo donor.

Issues Affecting Same-Sex Parents in South Carolina

In situations where a man and woman are married to each other, the man is presumed to be the legal father of a child conceived or born during the marriage. This is true even if the child is conceived using donated sperm, so long as the husband knew of the donation and intended to be the child’s father.

The same presumption of parentage does not apply in South Carolina for married same-sex spouses. Despite both parties being listed on the birth certificate, for gay couples, a non-genetic parent must affirm parentage through the courts via a second parent adoption in order to be granted full legal rights as a parent.

Whether you are single or married, part of a same-sex couple or an opposite-sex couple, if you are planning to expand your family through assisted reproduction technology, you need an agreement. The contract should be drafted specifically for your situation and calculated to establish your parental rights. We invite you to contact Brinkley Law Firm to schedule a consultation.