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VIII. PATERNITY/MATERNITY ADJUDICATION
As the laws of most states assume that a woman who gives birth to a child is the mother, and that her husband is the father of the child, there is generally some form of hearing or filing with the appropriate state agency or court. Otherwise, birth certificates probably issue in the names of other than the infertile couple.
A. Adoption
The traditional laws on adoption presuppose no genetic ties to the child. One generally does not have to adopt one's own genetic child. However, if there is no established judicial mechanism for paternity/maternity/surrogacy determination issues, adoption may prove to be a "fallback" mechanism in order to establish that the infertile couple is declared mother and father of the child.
In artificial insemination surrogacy, it is often necessary to have a step-parent or similar adoption proceeding, whereby the genetic mother (the surrogate) is replaced as mother of the child by the wife of the infertile couple.
1. Advantages of Adoption
There may be certain advantages to an adoption in the event there is not a recognized paternity/maternity/surrogacy method of determination. These may include dovetailing of the law of the state and with sister states under the Interstate Compact on the placement of children, where the infertile couple and the surrogate do not reside in the same state.
2. Disadvantages of Adoption
a) Adoption by an infertile couple is inconsistent in the case of gestational surrogacy, as it would require adoption of the infertile couple's own genetic child.
b) Investigation by social agencies. Adoption generally requires a government mandated investigation of the individuals who seek to be declared the parents of the child. This includes home studies, extensive divulging of financial information, and other issues which would affect the desirability of placement of the child with the adoptive parents. There is a possibility that a social worker investigating the background of the proposed adoptive parents would recommend against adoption.
c) Application of "best interests of the child" standard. The Court must generally apply the "best interests of the child" standard in adoption matters. Genetic ties are often not an issue in adoption proceedings, and, hence, it is possible the court could disregard the genetic tie to the child or minimize its impact, in deciding against adoption.
B. Paternity/Maternity/Surrogacy Adjudication
Where these proceedings are allowed, they often more directly address the surrogacy arrangement.
1. Advantages of Paternity/Maternity/Surrogacy Proceedings
a) Truth. These represent the true nature concerning the parentage of the child. Adoption proceedings generally presuppose no genetic link to adoptive parents. In the longer run, explanations are not required to the child concerning why its genetic parents abandoned it.
b) Control by the Infertile Couple. In adoption proceedings, social agencies make recommendations as to whether the infertile couple would be appropriate parents. The court independently examines the circumstances of the infertile couple's financial status, living conditions, and predisposition to be appropriate parents in order to what is in the "best interest" of the child. This is generally not present in a paternity/maternity/surrogacy proceeding.
The law confers rights to genetic parents. Most laws presumptively award custody, control, and responsibility to genetic parents, and proof of this genetic tie to the child generally automatically places the genetic parents (the infertile couple) in control of the destiny of their child.
2. Disadvantages of Paternity/Maternity/Surrogacy Proceedings
a) Timing. These hearings may only be contemplated under the law as available options following the birth of the child. Obvious shortcomings in this scenario include uncertainty during the pregnancy and birth of the child as to its parentage and, hence, who makes medical treatment decisions on behalf of the child as well as who would have custody of the child pending this determination.
b) Proof of Genetic Tie. Generally, the parties to the action (infertile couple, surrogate, surrogate's husband)are in accord as to the maternity and paternity of the child. Courts often require additional evidence. Affidavits of the infertility physicians may suffice. Testimony may be required, from either the parties or possibly the infertility physicians. If the surrogate has undergone a tubal ligation, or her husband a vasectomy, this is corroborating that the infertile couple are the parents of the child. Blood type analysis and genetic testing may be required, which is much more likely following the birth of the child.
IX. EGG DONATION/CRYOPRESERVATION CONTRACTS
Author: Mark A. Johnson
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GA
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