ASRM Legally Speaking

New Hampshire Court Denies Paternity in Posthumous Birth
The Supreme Court of New Hampshire has added its views to a growing body of law involving parentage of children conceived with frozen sperm from a decedent. In doing so it rejected the reasoning of a number of other courts deciding similar cases. The New Hampshire court ruled its state intestacy law precluded a child conceived after her father's death via artificial insemination from eligibility to inherit from her father as his surviving issue. Rejecting a series of arguments made on behalf of the child that were based on a number of other New Hampshire statutes, the Court concluded that the question was governed solely by its intestacy statute, and interpreted the statute's term "surviving issue" to preclude any child who was not born prior to the decedent's death. Although the facts were very similar to the Massachusetts court decision, Woodward v. Commissioner (LS '02), where the decedent had affirmatively consented both to posthumous reproduction and to support any resulting children, the New Hampshire court declined to read the statute more broadly or follow the ruling or rationale of Woodward. It did, however, emphasize the need for clarifying legislation to address the important public policy considerations at stake. With this most recent court decision, the states are now clearly divided on this issue. Khabbaz v. Commissioner, Social Security Administration, 930 A.2d.1180 (N.H. 2007).

Kansas Upholds Sperm Donor Law Requiring Written "Opt-Out" for Fatherhood
A long simmering appeal that brought the constitutionality of Kansas' sperm donor law into question, and triggered competing views from family law scholars, has now been resolved. The decision also raised important questions beyond Kansas. The Kansas statute states that a sperm donor is not a father absent a written agreement between the donor and mother (married or unmarried) that acknowledges his paternity. The man and woman, who was a lawyer, were friends. The court described the man as "an unmarried male non-lawyer". No written agreement was entered into prior to the insemination which took place in neighboring Missouri and resulted in twins.

The man attempted to assert his paternity, claiming the statute, as applied to a known donor, unconstitutionally stripped away his parentage rights in violation of his equal protection and due process rights. He also argued that Missouri law, rather than Kansas law, should apply since the insemination process occurred in Missouri, where the law does not similarly presume a donor is not a parent. He also argued that in Kansas either no doctor would have performed an insemination on an unmarried woman or would have had a duty to discuss the legal implications of the procedure under Kansas law.

The court upheld the constitutionality of the statute as applied to known donors. Even assuming the parties had an oral agreement, the court ruled the legal requirement of a written agreement was not a burden, that the law was designed to prevent the creation of parental status where it was not desired or expected. Rather than taking away a constitutionally protected right, it found that a sperm donor's biological link alone did not rise to the level of a parental right. The court noted that, while it was moved by the set of "amicus" (friend of court) briefs that argued in favor of policies that promoted two parents, "all that is constitutional is not necessarily wise" and that it was the province of the legislature, not the courts, to weigh such interests and public policies.

The court also rejected the man's argument that Missouri law should apply, finding that the Kansas law was "not only appropriate but constitutional. This choice is neither arbitrary nor unfair; neither party would have been justified in expecting Missouri to have a controlling interest as to any dispute between them." While not the focus of the case, it is interesting to consider the implications of such a statement of choices of law involving collaborative or third-party reproduction where parties and programs often rely on the jurisdiction in which the program is located, rather than the states of residence of one or both parties. In the Interest of KMH and KCH, In the Matter of the Paternity of KCH and KMH, No.96,102 (Kansas 2007)

Traditional Surrogate Granted Full Custody of Child
In an informal surrogacy arrangement between a married Florida couple and their traditional surrogate gone sour, the surrogate, Stephanie Eckard, has been awarded full legal custody of the baby girl she delivered in May 2007. The court denied child support from the biological father, Tom Lamitina, ruling he was a sperm donor under Florida law. According to the reported circuit court opinion handed down in October, the parties, all of whom had prior surrogacy experience, reportedly used an agreement the surrogate got off a surrogacy web site, which only she then signed prior to the insemination. There were also allegations that during the pregnancy the father (whom DNA later confirmed is the biological father) had questioned his paternity, and that the surrogate had both raised financial issues and cancelled any agreement. The circuit court ruled that under Florida's surrogacy and artificial insemination laws, there was no enforceable legal surrogate agreement and the intended father was considered a sperm donor with no parental rights or responsibilities. The court also noted that "the services of an experienced attorney who was familiar with the [law] may have adequately protected" the father and his interests. The couple's attorney has vowed to appeal. Eckerd v. Lamitina, OrlandoSentinel.com, Florida Times-Union (10/11/07)

RECAP: Genetic Mother Deemed 2nd Parent of Child Born to Former Partner
The California Supreme Court reversed an intermediate appellate court's ruling that had deemed the genetic mother of twins born to her former partner an egg donor, largely in reliance on the medical program's standard donor consent forms and waiver of parental rights contained in that form (LS Summer '04). The couple split up more than five years after the birth of twins to K.M. using eggs provided by E.G. The former couple had disagreed at trial as to whether or not they had agreed E.G. would be a donor or a second parent, and submitted conflicting oral testimony. They did not have a written agreement in place. Two lower courts had relied on both the clinic's donor consent form and California's sperm donor statute to deny E.G. status as a mother. That law, similar to the Kansas law, was modeled on the Uniform Parentage Act, as expanded to apply to unmarried and married women. The state's high court's reversal relied on the undisputed facts that the couple lived together and both intended to bring a child into their joint home, in distinguishing the case from a true gamete donation situation, and rejected the applicability of California's sperm donor statute even assuming it should be extended to egg donation. The Court also distinguished the often cited Johnson v. Calvert decision (LS Fall'93), where it had denied a compensated gestational carrier's attempt to establish maternity, ruling that California law "recognized only one natural mother" and made an intent-based determination that the married woman whose egg had been used with her husband's sperm was the child's legal mother. In contrast, here the Court found that because there were not three competing
parentage claims, and because K.M. did not claim to be a mother instead of E.G., it did not need to apply a similar intentionality test and ruled both women were mothers based respectively on genetics and gestation. K.M. v. E.G., 2005 Cal. LEXIS 9066.

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