User:Uosduffy/Artificial insemination

There is no federal law that applies to all fifty states when it comes to artificial insemination and paternity rights, but the Uniform Parentage Act is a model which many states have adopted. Under the 1973 UPA, married heterosexual couples making use of artificial insemination through a licensed physician could list the husband as the natural father of the child, rather than the sperm donor.

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Legal restrictions

Some countries restrict artificial insemination in a variety of ways. For example, some countries do not permit AI for single women, and other countries do not permit the use of donor sperm.

As of May 2013, the following European countries permit medically assisted AI for single women:

Law in the United States

History of Law Around Artificial Insemination and Legal Questions it Raises

Artificial insemination used to be seen as adultery and was illegal until the 1960s when states started recognizing the child born from artificial insemination as legitimate. Once the children began to be recognized as legitimate, legal questions around who the parents of the child are, how to handle surrogacy, paternity rights, and eventually artificial insemination and LGBT+ parents began to arise. Prior to the use of artificial insemination, the legal parents of a child were the two people who conceived the child or the person who birthed the child and their legal spouse, but artificial insemination complicates the legal process of becoming a parent as well as who is the parent of the child. Deciding who the parents of the child are is the largest legal predicament around artificial insemination. However, questions around surrogacy and donor’s rights also appear as a side question to determining the parent(s). Some major cases that deal with artificial insemination and parental rights are, K.M v E.G, Johnson v Calvert, Matter of Baby M, and In Re K.M.H.

Overview of Legal Parental Relations and Artificial Insemination

When children are conceived the traditional way, there is little discrepancy around who the legal parents of the child are. However, because children conceived using artificial insemination may not be genetically related to one or more of their parents, who the legal parents of the child are can come into question. Prior to the  passage of the Uniform Parentage Act  in 1973, children conceived via artificial insemination were deemed as “illegitimate” children. The Uniform Parentage Act then recognized the children born from artificial insemination as legal and laid precedent for how the legal parents of the child were decided. However, this act only applied to the children of those married couples. It established that the person who birthed the child was the mother and the father would be the husband of the woman. In 2002, the Uniform Parentage Act, which is adopted individually on a state by state basis, was revised to address non married couples and states that an unmarried couple has the same rights to the child that a married couple would. This extended who has the right to be a parent to a man who would supposedly fill in the social role as a “father.” There were now numerous ways to establish parental rights for both the mother and the father depending on if the child was born using a sperm donor or a surrogate. Currently, a revised version of the Uniform Parentage Act is starting to be passed in a few states that expands how parental relations can be determined. This bill includes expanding “father” to mean any person who would fill the role of a father, regardless of their gender and “mother” is expanded to anyone who gives birth to the child regardless of gender. In addition, this act would also change any language of “husband” or “wife” to “spouse.”

Paternity rights

There is no federal law that applies to all fifty states when it comes to artificial insemination and paternity rights, but the Uniform Parentage Act is a model which many states have adopted. Under the 1973 UPA, married heterosexual couples making use of artificial insemination through a licensed physician could list the husband as the natural father of the child, rather than the sperm donor. Since then a revised version of the Act has been introduced, though to less widespread adoption

Generally paternity is not an issue when artificial insemination is between a married woman and an anonymous donor. Most states provide that anonymous donors' paternity claims are not recognized, and most sperm donation centers make use of contracts that require donors to sign away their paternity rights before they can participate. When the mother knows the donor, however, or engages in artificial insemination while unmarried, complications may arise. In cases of private sperm donation, paternity rights and responsibilities are often conferred onto sperm donors when: the donor and recipient did not comply with state laws regarding artificial insemination, the sperm donor and recipient know one another, or the donor had the intent of being a father to the child. When one or a number of these things is true, courts have at times found written agreements relinquishing parental rights to be unenforceable.

Determining the Legal Mother

A woman giving birth is traditionally considered to be the child's legal mother, and the only way for another woman to be acknowledged as the mother is through adoption (which typically necessitates the birth mother formally giving up her parental rights). The gestational carrier will probably be able to achieve the effects of surrogacy by giving birth and then giving the child up for private adoption to the intended parents even in jurisdictions that do not recognize surrogacy arrangements, if the prospective adoptive parents and the birth mother proceed without any government intervention and do not change their minds along the way.

The intended mother, particularly if she doubles as the genetic mother, may be able to get legal recognition as the mother without having to go through the abandonment and adoption processes in jurisdictions that authorize surrogacy. This frequently happens through a birth order[40], in which the legal parenthood of a child is decided by a court. All parties involved, sometimes including the spouse of a married gestational surrogate, must typically agree to these directives. Several countries only allow for post-birth orders, frequently because they don't want to make the gestational carrier give up her parental rights if she changes her mind later.

Rights of the Surrogate

A woman agrees to carry a child to term or give birth on behalf of a different couple or individual who will later take parental responsibility for the child under a surrogacy arrangement, which is sometimes backed by a formal contract. When a couple doesn't want to bear the pregnancy themselves, when pregnancy is physically impossible, when pregnancy risks are risky for the intended mother, or when a single guy or a male couple wants to have a kid, people may look into surrogacy arrangements. Monetary compensation is often involved, however, not in every circumstance.

The preterm birth rate in surrogacy is somewhat lower than infants born through normal IVF for surrogate pregnancies where only one child is born. Infants born by in vitro fertilization and oocyte donation have an average gestational age of about weeks, as do babies born through surrogacy. When compared to single births, the preterm birth rate for surrogate twin pregnancies was greater. Compared to kids born by in vitro fertilization, there are fewer low birth weight babies delivered via surrogacy; nonetheless, both procedures have comparable incidence of birth abnormalities.

Surrogacy is often a choice made when a mother is able to carry on her own. Surrogacy is not always legal everywhere in the world. Several nations lack laws that particularly address surrogacy. Some nations openly prohibit surrogacy, while others forbid it but permit altruistic surrogacy (in which the surrogate is not financially compensated).

There are limited limits on commercial surrogacy in several nations. Several legal systems outlaw surrogacy entirely, including abroad.

Lesbian Couples Using IVF – Determining the Legal Mother(s)

Reciprocal IVF (in vitro fertilization) is a fertility treatment commonly used in lesbian relationships that allows both individuals to make a physical contribution to the pregnancy. IVF entails retrieving eggs from one individual and transferring them to the uterus of the other individual in addition to a donor sperm. When it comes to determining the legal parent when using IVF, the biological mother that donated the eggs is given legal parental rights over the gestational mother (who carried out the pregnancy). However, there are multiple options to allow both parties participating in IVF to have equal legal parental rights. The most common option is a pre-birth order granted under the Uniform Parentage Act of 1973. This is a court order to declare the intended parents as the legal parents of the child upon birth, and requires that both parents' names are on the birth certificate, giving them equal legal parental rights. The other most common option is a second-parent adoption, or in some cases where second-parent adoption is not permitted, stepparent adoption, which allows for a co-parent to adopt a child without terminating any of the parental rights of the other parent. However, this option often poses more risks to same-sex couples as this process is much longer, more expensive, more invasive, and less accessible than a pre-birth order. The second-parent adoption process requires several family evaluations by the Department of Human Services to determine if the individual is fit to be a legal parent of the child in question, which is a much lengthier process, more invasive, and allows much more room for bias and discrimination against same-sex couples. This adoption process is not permitted in all states due to various state regulations restricting second-parent adoption and previously restricting same-sex marriage. In some states (Alabama, Arkansas, Kansas, North Caroline, Nebraska, Ohio, and Wisconsin), appellate courts have deemed second-parent adoptions not permissible for all unmarried couples, although in these instances, couples often have the option of a stepparent adoption. In addition to these statewide regulations, six states (Michigan, North Dakota, South Dakota, Virginia, Alabama, and Texas) allow private child placement agencies to refuse to provide service to anybody on the basis of the agency’s religious beliefs; which allows for discrimination towards same-sex couples, preventing individuals from obtaining legal parental rights. However, considering adoptions are court orders, which under the Full Faith and Credit Clause of the Constitution all states are required to recognize, final adoption by an LGBTQ parent must be recognized in every state, regardless if the state’s laws would have permitted that adoption to take place.

Gay Couples Using Surrogacy – Determining the Legal Father(s)

Surrogacy is a fertility treatment option used in many instances, and is most common for gay couples wanting to have children. Surrogacy entails using IVF to impregnate a woman through IVF with a male’s sperm. There are no federal laws regarding surrogacy, so laws vary state by state. There are surrogacy friendly states which allow compensated and uncompensated surrogacy, and which also permit pre-birth orders regardless of marital status, sexual orientation, or genetic links to the child. In a surrogacy, pre-birth orders are signed by all parties, which give full legal parental rights to the intended parents, and no legal parental rights to the surrogate. Surrogacy friendly states are California, DC, New Hampshire, Rhode Island, Washington, New Jersey, Vermont, Nevada, Connecticut, Delaware, and Maine. Some states have less friendly laws such as restrictions on compensated surrogacies, and harsher regulations for granting pre-birth orders. These states are Arizona, Idaho, Indiana, Tennessee, Virginia, and Wyoming. In most of these states, the laws and regulations vary county by county, or even judge by judge, which leaves much more room for discrimination and inaccessible surrogacy for same-sex couples seeking equal legal parental rights. In some of these instances, pre-birth orders will be granted, but only to married couples, which up until 2015 with the Obergefell overturning Baker, same-sex couples were still prohibited from getting married in several states. Prior to Obergefell, in some states, same-sex couples would not be granted pre-birth orders inhibiting them from both legally being parents, because they were not married. Several states have no laws or regulations regarding surrogacy and are often referred to as surrogacy neutral states in which surrogacy is typically permitted. These states are Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Hawaii, Illinois, Kentucky, Massachusetts, Maryland, Minnesota, Missouri, Mississippi, Montana, New York, North Carolina, North Dakota, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Wisconsin, and West Virginia. And in three states (Louisiana, Michigan, and Nebraska), surrogacy has been prohibited under state statutes. Similar to lesbian couples using IVF, without a pre-birth order, the legal parental rights are granted to the parent who provided the sperm. An alternative to a pre-birth order for gay couples seeking equal legal parental rights, is a second-parent adoption, or a stepparent adoption, which both have varying regulations by state and is much more difficult to obtain, and in some states is not permissible.