Considering Mom: Maternity and the Model Act Governing Assisted Reproductive Technology

Abstract

The traditional family law doctrine governing maternity was easy to apply. Simply stated the rule for centuries was "the birth mother is the legal mother." However, this rule can no longer operate in the growing field of assisted reproductive technology and especially in collaborative reproduction. Today the birth mother is often a surrogate carrier, who may have a genetic connection to the child she births. However, in most cases the surrogate carrier has no genetic connection to the child. In contrast to the birth mother, the intended mother may be designated as both the legal mother under a contract and actually be the genetic mother. In other cases the intended mother provides an embryo to the surrogate carrier which was produced by a donated egg so that even though she intends to be the legal mother she has no genetic connection to the child. While a heterosexual intended mother may resort to surrogacy to overcome an infertility problem, or because of a history of miscarriage or simply to avoid pregnancy, the growing use of assisted reproduction by same-sex couples raises a number of legal parentage problems which are now coming before the courts. Parentage affects custodial and visitation rights and the law of inheritance. There is little statutory law to assist the courts in such cases. The author examines these problems in the light of the newly proposed A.B.A. Model Act Governing Assisted Reproductive Technology, and also considers the proposed uniform laws governing parentage and probate.

Keywords: Maternity, Parentage, Assisted Reproduction, Surrogate Carriers, Surrogacy Arrangements, Embryo Transfer, Inheritance, Parental Rights, Custody, Visitation, DeFacto Parent, Model Act on Assisted Reproduction, Uniform Probate Code, Same-sex Parents