Legal Issues: New Reproductive Techniques

1. Legal Issues: New Reproductive Techniques November 29, 2001

2. Problem 12-5 Surrogacy (AI) First Step: Classify Type of Agrmt. Second Step: Identify Parties Genetic Mother/Surrogate: Mary Genetic Father: Jack Intended Adoptive Mother: Jill (Jack’s wife)

3. I. SURROGATE WANTS TO BE RELEASED FROM K • Will court enforce agreement? State Regulation of Surrogacy (About Half the States Have Some Regulation) Ban & Criminalize/ Declare K void- Permit but Civil Penalties No enforcement Regulate (Minority) Through courts (Growing # - (Majority range of of statutes) regulations) MD – Among approx. 50% of states w/out surrogacy legislation

4. Statutory Grounds for Refusal to Enforce? • Pre-Birth Consent Invalid / No bases for TPR • Fee May Violate Anti-Baby Selling Statute in Most Adoption Laws Public Policy Grounds for Refusal to Enforce? • Best Interests of Child Should Govern Child Placement Decision • Exploitation of Women, Particularly Low Income • Policies underlying anti-baby selling statutes (adoption & criminal law

5. Gestational Surrogacy Genetic Mother: Jill (or Donor Egg) Genetic Father: Jack Surrogate: Mary Alternative Type of (More Common) Surrogacy Agmt: Implications for Statutory or Public Policy Objections to Surrogacy?

6. Parent v. Parent – Contested Custody Case • If Court Does Not Enforce Surrogacy Agreement, Classify Dispute Between Mary and Jack? C) How does presence of Mary’s husband change things? 1) Status of Husband: a) Legal father under most paternity statutes (marital presumption) but DNA testing could rebut presumption in most states. b) Legal father under most AID statues; c) Most Likely: Stepfather. As such, he may improve Mary’s custody claim under best interests analysis if K not enforced

7. II. GENETIC FATHER WANTS TO BE RELEASED FROM K • Child Born With Downs Syndrome • Jack and Mary could consent to adoption or • Mary can assume custody and file complaint to establish paternity and child support against Jack D) Prenatal Testing Reveals Downs Syndrome • Contractual Provisions Requiring Abortion: not likely to be enforced • Jack’s paternity can be established and his obligations enforced

8. Contractual Provisions Requiring Abortion: not likely to be enforced • Jack’s paternity can be established and his obligations enforced • Intended Adoptive Parent Gets Pregnant F) & G) Unanticipated Expenses • Additional payments demanded by Mary legally unenforceable • Third party insurer liability unclear

9. PRIVATE ORDERING: AGREEMENTS

10. Prenuptial Agreements Definition: Agreement to dispose of property in contemplation of death or divorce Enforceable? Historically: No – against public policy Modern: Most states enforce but heightened scrutiny: 1) Fair in procurement • full disclosure • voluntary (counsel, time to review, knowledge of rights) 2) Fair in result (at time of agrmt)/ unconscionability standard (at time of death or divorce)

11. Separation Agreements: Enforcement and Modification - “arm’s length” parties • Provisions Regarding Property • Negotiation/Enforcement • No heightened scrutiny • No full disclosure unless asked in discovery • Result must be fair? No-unconscionability standard • Provisions Regarding Alimony • • Negotiation/Enforcement: Parties can waive or agree to any amount if not unconscionable • Modification: If K silent, cts can modify amt during per. of pymt. But parties can limit ct’s ability to modify if clearly stated in K

12. • MD: “no modification” clause in K enforceable • Provisions Regarding Children 1) Child Custody & Visitation • Negotiation/Enforcement: Yes, but court cannot “rubber stamp” • Modification - Parties cannot limit ct’s ability to modify 2) Child Support • Negotiation/Enforcement: Parties not free to waive or set any amt – must comply with child support guidelines MD – Incorporate vs. Merge Incorporated but not merged – enforceable as contract & order Merge – only enforceable as court order