Takeaways from the ABA’s Session on ART Contracts and Parentage Establishment

I just got back from the American Bar Association’s Family Law Section Conference in Stowe, Vermont. It was a fantastic conference, and I was honored to have been able to serve as moderator for one of the panels, which consisted of distinguished surrogacy attorneys Victoria Ferrera from Connecticut and Kurt Hughes from Vermont, as well as Janson Wu, an accomplished LGBTQ rights lawyer from GLAD (“Gay & Lesbian Advocates and Defenders”).

The session focused upon the many things that can go wrong with the establishment of parental rights following assisted reproduction and how attorneys can avoid problems with well-written contracts. We talked about this in the context of surrogacy as well as egg donation and sperm donation.

The room was packed full of attendees ranging from experienced ART lawyers to brand new ART practitioners, which provided for an excellent audience for discussion of our “worst-case scenario” hypothetical.

Here are the major takeaways from this session:

  1. Contracts are important. Critically important.
  2. Never assume anything about parentage following assisted reproduction. The normal assumptions we make about parentage do not apply for assisted reproduction, so it’s best to be careful and identify and consult applicable state law.
  3. Problems can arise from all forms of assisted reproduction, including sperm donation, IVF, egg donation, and surrogacy. The most heartbreaking situations involve a child separated from his/her parent for several years while a case makes its way through the court system.
  4. A lot of these types of problems can be avoided simply by seeking legal advice before the pregnancy.
  5. Second parent adoptions remain an important legal tool for same-sex parents. The changing landscape of same-sex marriage has not removed the need for these adoptions, even in states like New Hampshire where same-sex marriage is legal.
  6. Attorneys new to ART law should associate themselves with an experienced attorney when starting out, because of the unique and complex nature of ART law.

New Hampshire lawyer Catherine Tucker