Insemination and the law

Insemination and the law

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While considering artificial insemination, individuals should understand the laws governing donor insemination in their state. Some states have laws that require donor insemination to be performed by a physician; other states might require the donor, if known to the woman or couple, to assume the legal responsibilities of a parent. In all 50 states, “unknown donors” assume no legal responsibility for any resulting children born. Artificial insemination using a “known donor,” such as a family member or friend, is more complex.

It is clear that less protection against assertion of parental rights by a sperm donor is available to lesbian couples or single parents than to married heterosexual couples. If the couple separates after birth of the child, the partner who is not biologically related may find it difficult to successfully seek visitation or partial custody, let alone parental status. A better outcome is possible if she can establish facts sufficient to be considered “in loco parentis.” A contract giving an unrelated person a right to custody and visitation may be enforceable but the best possible avenue is, where possible, to consider second-parent adoption as a means for a non-biological parent to achieve a legal relationship to the child.

In Pennsylvania, the law is silent regarding donor insemination and a “known donor” may be assigned some parental responsibility. Moreover, at least one court has concluded that a known donor and recipient cannot arrange to eliminate the donor’s legal relationship to the child.

A recent 2007 case, “Jacob v. Shultz-Jacob; Shultz-Jacob v. Jacob & Frampton,” Jacob and Schultz-Jacob were a lesbian couple that had four children (two were Shultz-Jacob’s nephews and two were Shultz-Jacob’s biological children conceived with Frampton’s sperm). After they separated, Jacob sought full custody of all four children. Jacob was awarded full custody of one of the children and Frampton was awarded partial physical custody of the two children he fathered; Shultz-Jacob appealed the decision. The Pennsylvania Superior Court held that although Shultz-Jacob stood in loco parentis of the child awarded to Jacob, it was in the best interests of the child to be placed in the primary physical custody of Jacob and that both mothers and Frampton were obligated to provide support to the children as they had all been awarded rights of custody.

In an earlier 2002 case, “L.S.K. v. H.A.N.,” a lesbian couple had five children conceived by the same woman (the gestational mother) through artificial insemination from an anonymous donor. The couple separated four years later but throughout the relationship, the non-biological/non-gestational mother cared for the children during the day. When the gestational mother moved to California, the non-biological mother pursued custody rights with regards to the children while simultaneously asserting that she did not have a legal obligation to pay child support because there was no agreement to do so. The Superior Court held that the non-biological mother stood in loco parentis, granting her partial custody and ordering that she pay child support for all five children.

In a more complex 2002 case, a married woman made an oral agreement with an extramarital male partner that he would provide semen for the purposes of artificial insemination and be released from any child-support obligation. She kept his identity anonymous for a long time, however she eventually disclosed it and filed for child support. The Court of Common Pleas emphasized the unique circumstances of the case and held that, although normally the sperm donor should be protected from liability, a parent cannot bargain away a child’s support rights.

Under the New Jersey Artificial Insemination Statute (N.J. Stat. Ann. §9:17-44(a)), a child conceived through artificial insemination and born to a married couple should have the certainty of parentage, so the mother’s husband is considered the father. For same-sex couples, especially if they are joined in a civil union, the non-gestational mother is usually granted parental status as well. However, counties have taken differing directions on whether the statute covers same-sex couples and whether both partners’ names will be put on the birth certificate.

In a 2006 case, a lesbian couple’s request to put both their names on the birth certificate of their son, conceived through artificial insemination, was rejected by a New Jersey divorce judge who determined adoption was the only remedy available to them to establish parental rights. In 2005, a lesbian couple in Essex County won the right to have both their names listed on their baby’s birth certificate. But judges in Burlington, Camden and Middlesex counties have denied similar requests.

In a 2000 case, “V.C. v. M.J.B.,” even though biological mother’s same-sex former domestic partner was the “psychological parent” of mother’s biological children, the court determined that she was not entitled to joint custody of children because it would not be in children’s best interest. Generally, a third party who is seeking custody of a child not related biologically or by adoption must show that the natural parent is unfit. But when a third party is able to show that he or she stands in loco parentis to the child, he or she can be accorded the status of a natural parent in determining custody. In such circumstances, the “best interests” test applies. The New Jersey Supreme Court then went on to enumerate a four-prong test for establishing “psychological parenthood.”

When a couple is considering artificial insemination, there are vital decisions to make from the very beginning. If using an unknown donor, the laws in all states are clear that the donor will have no legal obligations or claim the child. However, if the donor is a family member or friend both Pennsylvania and New Jersey case law demonstrates that the donor may find himself obligated to support the child or with standing to sue for custody. Given the legal landscape, the best route to ensure that children will be provided for after a separation or if the biological parent should die is for same-sex couples, where one parent is not a biological parent, to undergo a second-parent adoption.

Angela Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com .


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