In yesterday’s post I discussed the staggering array of diverse legal rules that surround lesbian and gay families. I mentioned a number of different circumstances that combine to create extraordinary variation and unpredictability in law. There’s one additional factor, however, that bears separate discussion here: Many lesbian and gay people (as well as single people) use ART (that’s Assisted Reproductive Technology) to create their families.
There’s a lot on the blog already about ART in all its many forms, so I can’t link to all of it. (The tags are helpful if you want to have a look.) Instead, I’ll just skim the surface to illustrate how use of ART creates legal complexity.
One point to start with: Legal rules about ART vary depending on the techniques in use. There isn’t really a general law of ART. This is in addition to state-to-state variation. That makes for a very complicated picture from the get-go. And for reasons that are likely obvious, lesbians and single women (being women) usually employ different ART devices than do gay men and single men (being men). Thus, there are some interesting gender issues here. I’ve touched on this recently.
Probably the simplest and most common form of ART is one used by lesbians and single women–assisted insemination or donor insemination. In most instances, a woman or women using donor sperm do not want the donor to acquire parental rights. But whether the donor does in fact acquire parental rights varies state to state.
In some states, a donor is not a father–end of discussion. But in other states a donor is a father unless the sperm is used to inseminate a married woman with the consent of her spouse. (In that case the spouse is a parent, and that does apply to Massachusetts lesbians.)
Many women might try to work around state laws by making agreements with their donors. But the value of those agreements vary. In a number of states, they are entirely meaningless as a legal matter. But there are also states where a written agreement that a donor is a father will be given effect (without a written agreement he is not) and some where a written agreement that the donor is not a father will be given effect (otherwise he is).
Donor insemination is not terribly useful for gay men or single men. Instead, they are more likely to employ some form of surrogacy.
Surrogacy is much more complicated and far more expensive. One side effect of this, I think, is that surrogacy is more likely to be done with the involvement of a lawyer, which means that some of the legal issues might get flagged and resolved in advance. By contrast, insemination is often DIY. Even when done in a doctor’s office, it’s low-key enough so that the early involvement of lawyers is infrequent. This means legal issues come to light later in the process, which is not typically a good thing.
Surrogacy laws also vary state-to-state. Some state laws promote surrogacy, others criminalize it. Some recognize the surrogate as a mother, others do not. In some places it depends on whether the surrogate is also genetically related to the child.
As if all this state-to-state variation is not enough, there’s one more factor that adds even greater confusion to the ART aspect of the picture. Many times ART involves people from different states. A donor from Texas provides sperm used in New York. A surrogate from Pennsylvania is retained by an agency in Indiana for a man in Ohio. Assuming for the moment that these states have different laws about the parental status of the participants in these transactions, which law will be applied?
While I’ve tried to make it clear that these concerns are not only the concerns of lesbian and gay parents–they apply to anyone using ART–many lesbian and gay parents do use ART, so they do add to the complexity of that patchwork quilt.