Legal Complications Arising from Assisted Reproduction
By: Charlotte Danciu, Esq. | Family Law Attorney
As Assisted Reproduction became more popular, so many questions arose and needed to be addressed. For example, who has parental rights to a child when it is born to a Surrogate? Chapter 742 of the Florida Statutes only addressed legal proceedings after the birth of the child to establish parentage and parental rights. Yet the Statue also says that the “Intended Parents or Commissioning Parents” are to take immediate custody and assume parental responsibility immediately at the birth. The Surrogate has no rights after the child emerges from her body under Chapter 742 but try to explain that to a doctor when a decision needs to be made whether to resuscitate a 23-week preemie that belongs to someone else in the delivery room. Thus, a true life and death conflict of rights exists when a child comes out of one woman’s body but belongs to another woman (or a man). Or what about the case of a botched delivery? Who has the right to sue on behalf of the child? Who has damages if no prebirth Order of parental rights has been entered? Is the baby a “legal orphan” and thus no loss to anyone? Fortunately, our judiciary has agreed with my position that a prebirth Order of Declaratory Judgement of Parental Rights pending Entry of an Order of Expedited Affirmation of Parental Status or Pre planned Adoption is appropriate and necessary. The prebirth Order is still subject to entry of the post birth Order confirming the correct embryo was transferred to the Surrogate’s uterus, but we have done our best to protect the respective rights and responsibilities of all the parties, including the child.
Many other issues may arise, including dealing with real-life hypotheticals such as what if the “Intended Parents” predecease the birth? What if the Surrogate dies giving birth? What if the Surrogate refuses medical treatment the “Intended Parents” request such as extrauterine surgery on a fetus? What if the Surrogate gives birth to a child who is severely impaired? What if the egg donor is a relative that decides to assert her “genetic” rights to disclose her identity to her “niece”? The list goes on. As a result of these plethora issues, it is important to make sure a Surrogacy Contract accounts for as many of these scenarios as possible.
Overall, Florida citizens are extremely fortunate to have a good Statute and playbook for the legal proceedings dealing with Surrogacy, Egg, and Sperm Donation and nontraditional family creation. Many other States have no law dealing with these topics and people must do things like adopt their own child. Some States will not enforce a Surrogacy Contract allowing a custody battle to ensue which results in legal quagmires and much heartache.
A Surrogate Mother and an Egg Donor are often paid reasonable expenses in these processes, but nothing compares to the tremendous gift she gives to a family. As a Reproductive Law practitioner, it is my responsibility to listen to my clients and incorporate their intent into legal contracts and proceedings that remain a new and unsettled area of the Law. The rewards, however, are tremendous and visible in the faces of the new parents who I assist in achieving their dream of parenthood.
Charlotte Danciu opened her law practice in 1980, always focusing on children and helping to create families. She has handled over 2000 adoptions and several hundred Surrogacies and Reproductive Law matters.