The Law and ART

Posted on August 10, 2004 by Inception Fertility
![](**Law Tries to Keep Up with ART:** A spate of judicial decisions here in California has family law attorneys paying close attention to a handful of unique conflicts, or "gray zones" made in some way possible by Assisted Reproductive Technologies (ART). As the definition of "family" expands more broadly, thanks to ART, new laws are actually being forged. Couples that don't fit the rubric of a traditional family (heterosexual man + woman = marriage) are being asked to make sure they have all of their legal ducks in a row. A few California cases are summarized here, including at least one that may reach the state Supreme Court. **Lesbian Parents and Child Support:** This complex case involves two lesbian partners, not registered as domestic partners, who jointly agreed to have children using the same sperm donor. Both women conceived, one year apart, and one of the infants was born with Down syndrome, prompting one of the women to remain at home as the care-giver. Two years later, the two women separated and the primary caregiver began receiving monthly child support payments from the woman who worked. When the child support provider halted payments after 18 months, county social workers attempted to tap her wages, a standard to which a biological father would have been held. Although a Superior court judge agreed with the county that child support payments should continue because the woman showed initial "intent" to raise the children, this past May the Court of Appeal in Sacramento reversed that decision to the dismay of gay rights legal activists. This decision is particularly disturbing, asserts Deborah Wald, a San Francisco attorney who specializes in non-traditional family law. "Children of same-sex couples do not have the same rights compared to children that have two parents of opposite sex; this is a shocking ruling and one that we are confident that the state Supreme Court will overturn," she said. Posthumous Conception: Many are anxiously watching a case that is pending final decision by the Los Angeles federal court. A wife had medical personnel extract her husband's sperm for freezing after his unexpected death. This was not contested. Four years later, after she conceived a daughter with his sperm, the mother sought Social Security survivor benefits. Although she didn't seek inheritance or life insurance claims, the outcome of this case is expected to have implications in these other areas. The Social Security Administration denied the benefits, insisting that the deceased dad is not recognized as the father under California law. The SSA follows specific state guidelines in resolving such issues, and has granted posthumous benefits in other states. But California has no laws governing children conceived after the death of a parent. This case has simultaneously prompted the state Legislature to craft AB 1910, which is enjoying broad support. This bill establishes that a posthumously conceived child is entitled to inheritance rights and other benefits under the Uniform Parentage Act if the decedent intended his or her genetic material to be used for posthumous conception of the child and expressed it in writing. It is expected to be signed by the Governor in September. Copies can be found at . **Lesbian Parents and Custody:** A woman who provided the donor eggs for her female partner, enabling the partner to conceive twins, signed away her parental rights per a standard egg donor contract used by a Bay Area infertility clinic seven years ago. Nevertheless, the two women spent the next six years living together and raising the children. As the egg donor started pressuring the gestational mother about being identified as a legal co-parent, their relationship fell apart, and the gestational mother moved across country with the twins, eventually cutting off all contact between the children and the egg donor. A California Court of Appeals ruling affirmed the gestational mother's hold on primary custody, saying its decision is based on the "intent" contract signed by the egg donor, which absolved her of all parental rights and future claims. The biological mother has appealed, the case has received a flurry of press, and the case may end up at the First District Court of Appeal in 2005.

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