Supreme Court, Surrogacy, and Children Born Abroad

All Eyes on the Supreme Court:

As ASRM members are undoubtedly aware, the US Supreme Court is under intense scrutiny as it takes up new abortion laws this term that challenge existing and long-standing law and precedent under Roe v. Wade and its progeny. 

Although restrictions to Roe have been allowed by subsequent US Supreme Court decisions, including Planned Parenthood v Casey (1992)[1] and Whole Woman’s Health v Hellerstedt (2016)[2] under an “undue burden” analysis, current challenges from laws passed in Texas and Mississippi are unique both by taking direct aim at Roe and the Constitutional right of a woman to terminate or continue a pregnancy prior to viability and, in the case of Texas, enacting laws that allow private citizens to bring cases and be financially rewarded for doing so.  

On October 7, as Legally Speaking went to press, a federal district court in Texas enjoined that state’s law declaring it a direct violation of the constitutionally recognized rights in Roe v. Wade; the state of Texas quickly filed a notice of appeal, and a 5th Circuit appellate ruling may reverse the injunction. Some abortion clinics in Texas resumed abortions the same day as the district court’s ruling; others say they are waiting for the next judicial step in the appellate process before doing so.

In September, ASRM joined with 24 other medical organizations to file an amicus (“friend of the court”) brief in the Mississippi case (Dobbs v. Jackson Women’s Health Organization), opposing that state’s abortion ban after 15 weeks. The impact on these challenges to reproductive rights in general, as well as to assisted reproductive technology practice, cannot be understated. All eyes will be focused on these developing cases at the Supreme Court during this critical term.

USCIS Expands Definition of “in wedlock” for Children Born Abroad for US Citizenship

In August 2021 the US Citizenship and Immigration Service (USCIS) announced a policy change affecting children born via ART outside the US.  Until recently, the policy only allowed those children born “in wedlock” to US citizen parents to be recognized as US citizens, which had resulted in a number of same-sex families having their children denied citizenship since the term “in wedlock” was considered by the government to mean that both members of the marriage must be genetically related to the child, or one had to be gestationally related with the other genetically related.  Numerous highly publicized cases had made the argument that this was an antiquated definition and application of the law. In one such case, only one of two twins born to a same-sex male couple was initially recognized as a US citizen, since each man was the genetic father of one of the twins, but only one of them was a US citizen. The couple successfully sued to establish both men as the twins’ legal parents.  (LS June 2019)

The new guidance now recognizes US citizenship of a child born abroad if they have a US citizen parent who is married to the child’s genetic or gestational parent, and “the relevant jurisdiction recognizes both parents as the child’s legal parents.”

A 2014 policy update had previously expanded the applicable term “parent” to include a gestational and legal parent in the relevant jurisdiction, which meant children born via gamete or embryo donation were no longer denied citizenship because of a lack of a genetic tie to their legal, gestational parent. 

US Surrogacy Legislative Updates: Colorado and Wyoming enact new surrogacy laws

a.     Colorado:

The Colorado Surrogacy Agreement Act, signed into law on May 6, 2021 (LS May 2021), aims to codify “consistent standards and procedural safeguards to promote the best interests of children who are born as a result of surrogacy agreements.” The Act applies to both genetic (traditional) and gestational surrogacy, allows for compensation, and requires one of the parties to have some connection to the state via either residency or working with a Colorado medical provider.

The law codifies many ASRM guidelines and fertility clinics practices already in place: a prospective surrogate must be at least 21 years of age; have previously given birth to at least one child; have completed both a medical evaluation by a M.D. regarding the surrogacy and a mental health consultation with a licensed mental health professional; have independent legal representation by a Colorado-licensed attorney who has been chosen by the surrogate “throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement”  (which may be paid for by the intended parents). Intended parents must be at least 21 years of age; have completed a medical evaluation and also have independent legal representation from a Colorado-licensed attorney throughout the surrogacy arrangement.  In contrast to the surrogate, however, the law does not require a mental health consultation for the intended parents.

The Act makes clear that the surrogate retains decision-making power over both her health and the pregnancy, and that ‘specific performance’ is not permitted for a breach by the surrogate as to impregnation, termination or non-termination of a pregnancy or undergoing medical procedures.

Colorado Surrogacy Agreement Act C.R.S. 19-4.5-101 et seq.14-2-901

b.    Wyoming

Effective July 1, 2021, Wyoming enacted a narrower surrogacy related law, the Wyoming “Birth certificates – gestational agreements” Act. The law addresses only gestational surrogacy and codifies standards and procedures to establish legal parentage for intended parents and ensure the birth certificate or “vital records” reflects them as the child’s parents.

The statute also limits compensation to “expenses related to prenatal care, delivery of the child and any other costs including the cost of lost opportunity that are directly connected to the pregnancy”. The latter language suggests that wage replacement will be permitted.

The law requires all parties be at least 21 years old and, in an attempt to avoid reproductive tourism into the state, imposes a one-year residency requirement on intended parents. The surrogacy agreement must be filed with the state registrar of vital records, where it is to be sealed subject only to a court order to open it.

Although the statute uses gender neutral language in defining “intended parents” ("’Intended parents’ means two (2) persons who enter into a gestational agreement with a gestational carrier for the birth of a child for which the two (2) persons shall assume paternity or maternity.”), with respect to birth certificates, the law provides for “two (2)” intended parents to be referred to as being deemed the “mother and father” (upon completion of state required paperwork). How the state will address same-sex couples for purposes of legal parentage and birth records is not stated.

HB0073 Birth certificates-gestational agreements.

Update on the Uniform Parentage Act 2017

Effective January 2022, Connecticut will become the most recent state to adopt the model Uniform Parentage Act of 2017 (UPA 2017). The model law, and states adopting it, are updating their parentage laws in light of significant changes in legal recognition of same-sex marriage and families, as well as the expanding use of gestational surrogacy and other ART practices.  Washington, Vermont and California were amongst the first states to enact laws modeled in whole or in large part on the UPA. Rhode Island followed in 2020, and Maine and Connecticut in 2021. It has been introduced and efforts are underway to enact it in Nevada, Pennsylvania and Massachusetts.

The goal of UPA 2017, an updated model statute created by the National Conference of Commissioners on Uniform State Laws (NCCUSL) first created in 1973 and updated in 2002, is to provide “states with a uniform legal framework for establishing parent-child relationships” by setting out clear rules and procedures as continually expanding medical and societal advances enable a more expansive definition of parentage and families. (LS Nov. 2017).

Efforts are continuing to enact UPA 2017 in more states in the hope of having greater uniformity on parentage laws throughout the US. 

International ART Law Updates:

Israeli Supreme Court Strikes Down Surrogacy Ban for Gay Men as Discriminatory

In July 2021, the Israeli Supreme Court revisited its 2020 ruling on surrogacy restrictions after the government’s failure to revise the law as ordered. In its earlier order, rendered in a lawsuit brought by a gay couple, the court ruled that the law which expanded access to surrogacy to single women, but not to gay men, denied equality and “the right to parenthood.” It had given the Israeli Parliament one year to change the law. At the end of that year, it revisited the status of the unchanged surrogacy law, ruled that it “cannot abide the continued serious damage to human rights caused by the existing surrogacy arrangement,” and ordered coverage to be extended. It allowed six months to give time to draft guidelines for the expanded law.

The decision was hailed by gay rights activists in the country, while it was denounced by ultra-orthodox spokespersons who argue it does not comport with or safeguard Israeli traditions or Jewish family values. 

France Expands ART Laws, Leaves Surrogacy Ban Unchanged:

In June 2021, after two years of debate and hundreds of hours of protests, the French Parliament signed into law provisions that will expand assisted reproductive treatments to lesbian and single women, alter sperm donor identity protections, and allow egg freezing for women without requiring a medical necessity. Surrogacy is still prohibited, meaning same-sex male couples and others who need a gestational carrier to create their families will also have to continue to seek treatment outside of France.

In enacting this law France joins 13 other European countries in offering lesbian and single women IVF treatment. France still does not allow donor compensation or importation of sperm, and both clinics and the spokesperson for an association of same-sex families have said they anticipate a sperm shortage within France given the new law. There have historically been long waits for donor sperm, and with the new law also removing any guarantee of anonymity for donors as of September 2022, many French women are expected to continue to go abroad to avoid delaying their fertility treatments. Reportedly, France had only 317 sperm donations in 2019.

The newly signed into law also expands access to treatment by allowing women in their 30s to freeze their eggs regardless of whether they face any fertility limiting treatment. 

[1] 505 U.S. 833 (1992)
[2] 136 S. Ct. 2292, 2309 (2016)

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

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