Advances in science have created new opportunities for parents–to-be and challenging issues for family law attorneys and the courts here in Massachusetts. Until more recent times, legal parenthood was possible only through sexual intercourse or through the adoption process. When a woman gave birth, she was the legal mother of the child, and if married, her husband was presumed to be the legal father.
Today, issues surrounding non-sexual reproduction continue to evolve, although the law in this area has failed to keep pace with technology. Professor Charles Kindregan of Suffolk University Law School in Boston refers to the laws of assisted reproductive technology as “a kind of legal wild west.”
The landscape in Massachusetts is just that, as many situations are not yet covered by statute, leaving our courts to make decisions with little judicial history to consider. Due to the controversial nature surrounding emerging scientific procedures related to reproduction (for some people at least) lawmakers have not made legislation in this area a priority.
What is Assisted Reproductive Technology (ART)?
ART applies to any method of achieving pregnancy other than by sexual intercourse. Some of these technologies have been around for decades, while other procedures are more recent.
- Intrauterine (Artificial) Insemination has been used for approximately 50 years.
Newer methods include:
- Transfer of fertilized eggs (embryos)
- Donation or sale of sperm and eggs for use by others
- In-vitro fertilization – conception occurs in a culture dish, and the fertilized embryo is then implanted in the mother, or a woman serving as a surrogate carrier.
- Intracytoplasmic sperm injection
- Use of a surrogate gestational carrier
Human cloning does not fall under the ART label, and is not allowed in Massachusetts for reproductive purposes, as set forth in Mass Gen Laws c. 111L, sections 1 and 3.
What is Collaborative Reproduction?
Collaborative reproduction is another type of assisted reproduction technology involving a person or persons not intended to be parents, along with the intended parents, cooperating to produce a pregnancy. Non-parental involvement may come from individuals donating gametes or embryos; and/or women who agree to act as “carriers” or “surrogate mothers” on behalf of another woman. Some states distinguish between a woman who gestates a child using her own egg (a “traditional carrier”) from the more common instance where a donated egg of the intended mother is used (“gestational carrier”) and the carrier is the birth mother, but no the genetic mother.
Massachusetts does not yet have a statute pertaining to carriers or surrogate mothers, but there have been court-decisions about surrogacy. In Massachusetts, the intended parents, the surrogate carrier, and the hospital where the delivery is to occur may seek a pre-birth order of parentage that will allow the names of the intended parents to go on the birth certificate.
ART and Same-Sex Female Relationships
Although common today, statutes provide no legal status to the consenting same-sex partner when her partner uses intrauterine insemination to become pregnant. In Massachusetts, where same-sex marriage is legal, it is not yet clearly established how some legal principles will apply to those in same-sex marriages. To protect the rights of the same-sex partner, it is important that the non-bio mom adopt the child.
Eggs and sperm are frequently frozen and preserved for future use as a related activity to the in-vitro fertilization (IVF) process. Quite a number of legal conflicts have developed over use and disposition of embryos and sperm at the time of divorce, and the status or cryo-preserved fertilized embryos. In Massachusetts, the courts have not been receptive to imposing parenthood on someone who no longer wishes to be a parent. Issues related to posthumous reproduction have also been increasing, partly because of the increase in use of cryopreservation.
The Current Legal Landscape
Although a number of model acts were proposed to help provide a workable framework for assisted reproductive technology, Massachusetts has not approved any legislation. The American Bar Association Model Act Governing Assisted Reproductive Technology proposes to regulate assisted reproduction, and includes advance judicial approval in surrogacy situations so all parties are clear on their rights and responsibilities at the beginning.
If you are considering assisted reproductive technology in Massachusetts, all parties should be clear on their rights and responsibilities early in the process. Many potential conflicts can emerge in this developing area, so consult a Massachusetts family attorney for confidential assistance.