The best commercials are the ones where you never remember the product. My favorite is the one where a guy is sitting at the kitchen table in his undershirt with a butter knife in one hand and the telephone in the other. On the other end of the telephone is a surgeon in scrubs explaining “An appendectomy is really easy. Here’s that you do …”

American love to do things for themselves. The ‘can do’ attitude is part of our culture. That is true even when it comes to helping infertile couples conceive. Why spend thousands of dollars on expensive medical procedures and lawyers when a turkey baster will do? 

A Virginia court discussed that issue in a 2015 court decision. The opinion begins “[Joyce] wanted to conceive a child she could raise on her own, without the involvement of a father. [Joyce] apparently believed that if she became pregnant in a way that did not involve sexual intercourse, the biological father would not have a claim to any parental rights.” The court disagreed. Virginia has a statute which defines “assisted conception” as “a pregnancy resulting from any intervening medical technology”. The turkey baster did not constitute a medical technology and the donor was a parent. “The path to fatherhood may have been unconventional, but as the father … [the donor] was entitled to seek (and as the trial court found, receive), visitation with his son.”

It is increasingly common for infertile couples and same sex couples to utilize donated sperm or eggs to conceive a child. This is usually done with the assistance of a fertility clinic and with all the appropriate legal protections. But not always.

Why do all of that when all you really need is a little help from a friend? Because things get very complicated unless it is a doctor-supervised insemination. North Carolina does not have a law specifically addressing paternity in assisted reproduction situations. Those states that do, like Virginia, always specifically exclude conception as the result of intercourse and usually exclude or any other nonmedical procedure.

In Oregon, Richard and Judy met in 1998 through a mutual friend who understood that Richard was interested in locating a woman who would be willing to be artificially inseminated and to carry a child to term for him. The parties reached a verbal agreement that the mother would attempt to become pregnant with the father’s child through artificial insemination and would carry the child to term in exchange for $12,000, plus other costs and insurance. The mother further agreed that she would surrender the child to father, who would then be responsible for parenting the child.

This is what is called a traditional surrogacy arrangement. There were a couple of problems: The Oregon courts declined to enforce the traditional surrogacy agreement because a material term of the agreement – pregnancy via artificial insemination – was not performed. The parties had sex, lots of times, and that’s how they achieved the pregnancy. It didn’t help that the parties didn’t get around to signing the surrogacy agreement until the “surrogate” was 7 months pregnant. The court of Appeals observed, “The references to artificial insemination throughout the agreement are not mere formalities; they constitute material terms to an agreement that the parties simply never performed.”   

Conception as the result of sex or any nonmedical procedure means that the donor is a parent, whether that is what the parties intended or not. Without an agreement, the law presumes that biology determines parentage. The woman that delivers the baby is the mother. If she is married to a man, her husband is presumed to be the father. If she is not married, the donor is the father with all of the rights and obligations that go along with fatherhood.

In 2007, a Pennsylvania court ordered that a sperm donor who helped a lesbian couple conceive two children is liable for child support. A California court reached a similar result in 2014 in a case where a man who provided his sperm to a girlfriend and later allegedly spent time with the child and held the child out as his own. He argued he was entitled to seek a parentage determination notwithstanding his earlier signed documents.

In 2014, a Kansas court ruled that sperm donation through a nonmedical procedure left the donor liable to reimburse the state for benefits paid to the mother. William Marotta answered a Craigslist ad in 2009 from a lesbian couple seeking donated sperm. The couple say they performed artificial insemination at home. Marotta says he signed an agreement to waive his parental rights. Everything was fine until the couple separated and one of the women stopped working because of illness and applied to the state for help. The state contacted Marotta for child support.

Fortunately for the couple, Marotta has no desire to exercise a parental role or things could be even more complicated.

It is essential to always have a sperm or egg donation agreement and or waiver that sets out clearly the legal rights of the parties. Without a legally binding agreement, biology may be all that matters. What the parties may have said or intended many months ago does not.

Take the case of a lesbian couple that chose to build their family by one of them having sex with two different male volunteers. There were significant discussions about everyone’s expectations prior to conception. After the baby was born, the father asserted his parental rights.

Now, the litigation begins. It is likely to continue for a very long time, maybe for eighteen years. The result is never certain. Everyone always says the same thing about litigation – “It took too long and cost too much.”

Assisted reproductive technologies (ARTS) law is a rapidly developing and highly specialized area of the law. As usual, the law has lagged behind medical advances and societal change. Understandably, people are not willing to put their family building on hold until the law catches up.

Even with the use of appropriate medical procedures and an agreement about the parties’ expectations, after the birth it may be necessary, or at least advisable, to also file a petition for adoption or take other legal actions to ensure that the intended parents’ rights are legally recognized and any donors’ rights are properly terminated. Failing to do so can have very unpleasant and expensive unintended consequences.

So, what can we learn from these examples:

• Consult an experienced ARTS lawyer about your options before making these life changing decisions.
• Utilize the services of a donor or egg program that incorporates the appropriate legal protections.
• If you are going to utilize a known donor or surrogate, at least get your expectations in writing.
• Utilize the services of a physician or fertility clinic for insemination or implantation.
• Follow through after the birth with the appropriate legal procedures to establish the legal rights of the intended parents and terminate the parental rights of the biological parents.   

While there is great deal of uncertainty in this emerging field of law, one thing is certain: Getting those expectations in writing before, well before you … well … make a baby, is better than trying to sort it out later. It is also a lot less expensive. Lawyers can provide their greatest value by helping people to avoid conflicts.