Family Law Focus – Cozen O'Connor

Contracts Are Considered When Using Assisted Reproduction Technology

Two recent decisions highlight the importance of contracts between parties in cases involving assisted reproduction technology (ART).  In Pennsylvania, the Superior Court found that television personality, Sherri Shepherd was indeed the legal mother of a child born in a surrogacy arrangement.  For the full story click here.   Basically, Shepherd and her then husband, Lamar Sally entered into a contract with a gestational carrier to bear a child for them.  During the pregnancy, the couple began having marital problems, and Shepherd did not want to sign the necessary paperwork to be named on the birth certificate of the child.  The Court, nonetheless, enforced the gestational carrier contract where both Shepherd and Sally were named as the intended parents of the child and found that they were the legal parents of the child.

A case coming out of California gave further guidance on the issue of preserving frozen embryos when parties divorce.  For the full story click here.   Basically, as in many contracts signed at fertility clinics when parties decide to preserve embryos, here the parties agreed that their frozen embryos be destroyed in the event they divorced.  Despite this agreement, the Wife asked that the Judge disregard it.  She appealed to the Judge’s humanity in making a plea to save the embryos.  Basically, she asked to Judge to ignore the contract and consider the compelling facts of the matter in making a determination.  Specifically, the Wife wanted the Judge to understand that she was infertile having been rendered so by breast cancer.  She was also 46 years old.  Despite the Judge’s sympathy for the Wife, she decided to uphold the terms of the parties’ contract and direct that the frozen embryos be destroyed. While she did not deny that Wife had the right to procreate, she refused to force Husband into unwanted parenthood.

These two recent decisions highlight the importance of taking contracts seriously when parties enter into ART arrangements.  While most parties who are utilizing assisted reproduction technology are primarily focused on creating children when they enter into such agreements, they must consider all permutations arising from the creation of these children, including the fact that they may not remain together as a couple in the future.  Thus, it is important to plan accordingly.  As we have seen, Courts are increasingly likely to look at these contracts in deciding future disputes between the parties.

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